Babylonian Talmud: Tractate Yebamoth

Folio 15a

perform the halizah¹  but do not marry any of the brothers'.²  They had hardly time to conclude the matter before confusion set in. Said R. Simeon b. Gamaliel to them, 'What now could we do with previous rivals'!³  Now, if you assume that they⁴  acted [in accordance with their own rulings] one can understand why he said, 'What shall we do'.⁵  If, however, you assume that they did not so act, what is the meaning of 'What shall we do'?⁶  — R. Nahman b. Isaac replied: This⁷  was required only in the case of the rival herself;⁸  and this is the meaning of the objection 'what shall we do': 'How shall we, according to Beth Shammai, proceed with those rivals [who married⁹  in accordance with the rulings] of Beth Hillel? Should they be asked to perform the halizah, they would become despised by their husbands; and should you say, "Let them be despised", [it could be retorted]. Her ways are ways of pleasantness and all her paths are peace'.¹⁰

Come and hear: R. Tarfon¹¹  said: Would that the rival of [my] daughter¹²  were to fall to my lot¹³  so that I could marry her!¹⁴  — Read, 'that I could make her marry [another]'.¹⁵  But he said, 'Would'!¹⁶  — It¹⁷  implies objection to the ordinance¹⁸  of R. Johanan b.Nuri.¹⁹

Come and hear: It happened that R. Gamaliel's daughter was married to his brother Abba who died without issue, and that R. Gamaliel married her rival!²⁰  — But how do you understand this? Was R. Gamaliel²¹  one of the disciples of Beth Shammai!²²  But [this is the explanation]: R. Gamaliel's daughter was different because she was incapable of procreation.²³  Since, however, it was stated in the final clause, 'Others say that R. Gamaliel's daughter was incapable of procreation' it may be inferred that the first Tanna is of the opinion that she was not incapable of procreation! — The difference between them²⁴  is the question whether he²⁵  knew her²⁶  defect²⁷  or not.²⁸  And if you wish I might say that the difference between them²⁴  is the case where he²⁵  married [the rival] first and subsequently divorced [his wife].²⁹  And if you wish I might say that the difference between them²⁴  is whether a stipulation³⁰  in the case of matrimonial intercourse is valid.³¹

R. Mesharsheya raised an objection: It once happened that R. Akiba gathered the fruit of an ethrog³²  on the first of Shebat³³  and subjected it to two tithes,³⁴  one³⁵  in accordance with the ruling of Beth Shammai³⁶  and the other³⁷  in accordance with the ruling of Beth Hillel.³⁸  This proves that they³⁹  did act [in accordance with their rulings!] — R. Akiba was uncertain of his tradition, not knowing whether Beth Hillel said the first of Shebat⁴⁰  or the fifteenth of Shebat.⁴⁰

Mar Zutra raised an objection: It once happened that Shammai the Elder's daughter-in-law was confined with child⁴¹  and he⁴²  broke an opening through the concrete of the ceiling and covered it above the bed with the proper festival roofing⁴³  for the sake of the child.⁴⁴  Does not this prove that they³⁹  did act [in accordance with their rulings]?⁴⁵  — In that case, any onlooker might assume that it was done in order to increase the ventilation.⁴⁶

Mar Zutra raised an objection: It once happened with Jehu's Trough in Jerusalem, which was connected by means of a hole with a ritual bathing pool,⁴⁷  and in which⁴⁸  all ritual cleansing in Jerusalem was performed, that Beth Shammai sent and had the hole widened; for Beth Shammai maintain that the greater part [of the intervening wall] must be broken through.⁴⁹  But we have also learned that the combination of bathing pools⁵⁰  may be effected by a connecting tube of the size of the mouth-piece of a leather bottle in diameter and circumference,⁵¹  viz., a tube in which two fingers may conveniently be turned round.⁵²  Does not this prove that they⁵³  did act [in accordance with their rulings]?⁵⁴  — There

1. So that any stranger might be permitted to marry them, even according to Beth Shammai.
2. And thus prevent their children from being branded bastards according to Beth Hillel. (V. supra note 6).
3. Tosef. Yeb, I; the rivals who, relying on Beth Shammai, married brothers-in-law, prior to the ordinance, whose children would, were the ordinance of R. Johanan b. Nuri to be accepted, become bastard.
4. Beth Shammai.
5. Since some may have married brothers-in-law. V. supra n. 1.
6. No such marriage could possibly have taken place.
7. R. Simeon b. Gamaliel's precaution.
8. Who may have married a stranger without previous halizah, in accordance with the ruling of Beth Hillel. It has no reference at all to the children, who would not be regarded bastards even according to Beth Shammai.
9. Strangers, previously performing the halizah.
10. Prov. III, 17. The ways of the law must lead to no unpleasantness for the innocent.
11. A disciple of Beth Shammai.
12. Who was married to a brother of his.
13. As levir.
14. Which shews that Beth Shammai acted in accordance with their ruling that the rival of a forbidden relative is permitted to the brothers.
15. Which is, of course, permitted according to Beth Hillel. The Heb. [H] 'I will marry her' (verb. neut. Kal) may be easily mistaken for [H] will cause her to marry another' (verb. act. Hif.).
16. Which implies a desire to shew something novel. Marrying a stranger, in accordance with the ruling of Beth Hillel, is the usual practice.
17. The expression 'would'.
18. Lit., 'to bring out', 'to exclude (the view)'.
19. Who desired to institute for rivals halizah to enable them to marry strangers, though prohibiting their marriage with the brothers
20. Thus acting in accordance with the ruling of Beth Shammai. (V. p. 79, n. 12.)
21. A descendant of the house of Hillel.
22. Obviously not. How, then, could it he assumed that he acted in accordance with a ruling of Beth Shammai?
23. And the rival of such a woman is permitted to the brothers. V. Mishnah supra 2b.
24. The 'Others' and the first Tanna.
25. The husband, R. Gamaliel's brother.
26. R. Gamaliel's daughter's.
27. At the time of their marriage.
28. V. supra 12a. According to the first Tanna, the rival of R. Gamaliel's daughter was permitted only because her husband was unaware of her defect, and their marriage consequently took place under a misconception. Such a marriage being invalid, R. Gamaliel's daughter was not a legal wife, and her rival consequently was a mere stranger to her father. According to the 'Others', who use the expression 'was incapable' and not 'was discovered to be incapable', the rival was permitted to R. Gamaliel irrespective of whether his daughter's defect had or had not been known, to her husband.
29. V. supra 13a. Such as was the case with R. Gamaliel's daughter. The first Tanna is of the opinion that the rival was permitted to R. Gamaliel because at the time his brother died she was no more his daughter's rival. The 'Others', however, maintain that so long as the two were rivals for any length of time (in this case, between the time of the marriage with the rival and the divorce of R. Gamaliel's daughter) they remain legally as rivals for all time, and the only reason why R. Gamaliel was allowed to marry the rival of his daughter was because his daughter had the defect of being incapable of procreation, and the rival of such a woman is permitted to the brothers. V. supra 2b.
30. That the woman, e.g., suffers from no illness or that she is not afflicted with any infirmity.
31. Such a stipulation was made by the husband in the case of R. Gamaliel's daughter. The first Tanna is of the opinion that the stipulation is valid, and since an infirmity was subsequently discovered, the marriage is null and void and the rival as a mere stranger is consequently permitted. The 'Others', however, regard a stipulation in connection with marital intercourse as invalid. R. Gamaliel's marriage with the rival was consequently permitted only because his daughter was incapable of procreation.
32. V. Glos.
33. The eleventh month in the Hebrew calendar, the first day of which is regarded by Beth Shammai as the New Year for trees. The period of the gathering was about the end of the second year of the septennial cycle and the beginning of the third.
34. The 'second tithe' which is due in the second year of the septennial cycle, and the 'tithe for the poor' which is due in the third year of the cycle.
35. The 'tithe for the poor'.
36. According to whom, the first of Shebat being regarded as the beginning of the New Year for trees, the third year of the cycle had already begun, and the tithe due is, therefore, that of the poor.
37. The 'second tithe'.
38. Who, maintaining that the new year for trees does not begin until the fifteenth of Shebat, regard the first day of the month as still belonging to the concluding year, i.e., the second of the cycle in which the 'second tithe' is due. 'Er. 7a, R.H. 14a.
39. Beth Shammai.
40. Was the new year. Cf. supra nn. 5-7.
41. During the Festival of Tabernacles when it is obligatory upon all males to dwell in booths (Lev. XXIII, 42), the roof of which must consist of branches or leaves or any similar material which grows from the ground (v. Suk. 2aff).
42. Shammai.
43. V. supra n. 10.
44. Who was a male and, in the opinion of Beth Shammai, a male child, though still dependent on his mother, is like any male adult subject to the obligation of dwelling in a booth during the festival. Suk. 28a.
45. Since according to Beth Hillel the child, being dependent upon his mother, is exempt from the obligation.
46. The action, therefore, did not in any way demonstrate a disregard for the ruling of Beth Hillel.
47. [H] 'a gathering together', applied to a bath or pool containing forty se'ah of water, which is the prescribed minimum for a ritual bath.
48. The trough, though containing less than the required minimum, was rendered ritually fit through fusion with the larger pool by means of the connecting hole.
49. Mik. IV, 5.
50. Which renders the smaller one, containing less than the prescribed minimum, ritually fit.
51. Lit., 'like the tube of a leather bottle in its thickness and hollow space'.
52. Hag. 21b, Mik. VI, 7; lit., 'as two fingers returning to their place'.
53. Beth Shammai.
54. Since the original tube, according to Beth Hillel, was quite sufficient, and they had nevertheless ordered its extension.

the onlooker might assume that the extension was made in order to increase the volume of the water.¹

Come and hear: R. Eleazar b. Zadok said: When I was learning Torah with R. Johanan the Horonite²  I noticed that in the years of dearth he used to eat dry bread with salt. I went home and related it to my father, who said to me, 'Take some olives to him'. When I brought these to him and he observed that they were moist³  he said to me, 'I eat no olives'.⁴  I again went out and communicated the matter to my father, who said to me, 'Go tell him that the jar was broached,⁵  only the lees had blocked up the breach';⁶  and we learned: A jar containing pickled olives, Beth Shammai said, need not be broached;⁷  but Beth Hillel say: It must be broached.⁸  They admit, however, that where it had been broached and the lees had blocked up the holes, it is clean.⁹  And though he¹⁰  was a disciple of Shammai, he always conformed in practice¹¹  to the rulings of Beth Hillel. Now, if it be conceded that they¹²  did act in accordance with their own rulings, one can well understand why his¹⁰  action was worthy of note;¹³  if, however, it were to be contended that they did not so act, in what respect was his conduct noteworthy!¹⁴

Come and hear: R. Joshua was asked, 'What is the law in relation to the rival of one's daughter'? He answered them, 'It is a question in dispute between Beth Shammai and Beth Hillel'. — 'But [he was asked] in accordance with whose ruling is the established law'? 'Why should you,' he said to them, 'put my head between two great mountains, between two great groups of disputants, aye, between Beth Shammai and Beth Hillel? I fear they might crush my head! I may testify to you, however, concerning two great families who flourished in Jerusalem, namely, the family of Beth Zebo'im of Ben 'Akmai and the family of Ben Kuppai of Ben Mekoshesh,¹⁵  that they were descendants of rivals¹⁶  and yet some of them were High Priests who ministered upon the altar'. Now, if it be conceded that they¹⁷  acted [in accordance with their own rulings] it is quite intelligible why he said, 'I fear'.¹⁸  If, however, it be suggested that they¹⁷  did not so act, why did he say, 'I fear'!¹⁹  But even if it be granted that they did act [according to their rulings], what [cause had he for saying,] 'I fear'? Surely R. Joshua said that a bastard was only he who was a descendant of one of those who are subject to capital punishments which are within the jurisdiction of the Beth din!²⁰  — Granted that he²¹  was not a bastard, he is nevertheless tainted;²²  as may be deduced by inference a minori ad majus from the case of the widow: If the son of a widow²³  who is not forbidden to all²⁴  is nevertheless tainted,²⁵  [how much more so the son of a rival]²⁶  who is forbidden to all.²⁷

They asked him concerning rivals and he answered them about the sons of the rivals! — They really asked him two questions: 'What is the law concerning the rivals? And if some ground could be found in their case in favour of the ruling of Beth Hillel, what is the law according to Beth Shammai in regard to the sons of the rivals, [who married]²⁸  in accordance with the ruling of Beth Hillel'?²⁹  What practical difference is there?³⁰  — That a solution may be found, according to Beth Hillel, for the question of the child³¹  of a man who remarried his divorced wife.³²  Do we³³  apply the inference a minori ad majus, arguing thus: 'If the son of a widow who was married to a High Priest, who is not forbidden to all,³⁴  is nevertheless tainted,³⁵  how much more so the son of her³⁶  who is forbidden to all';³⁷  or is it possible to refute the argument, thus: 'The case of the widow is different because she herself is profaned'?³⁸  And he said to them, 'With reference to the rivals I am afraid;³⁹

1. V. note 2.
2. [Cf. Hauran, mentioned in Ezek. XLVII, 18, south of Damascus, the Auranitis of the Graeco-Roman times.]
3. Moisture renders fruit susceptible to Levitical uncleanness.
4. He hesitated to eat them owing to the possibility (Rashi) or the certainty (Tosaf. a.l. s.v. [H] that the earthen jar in which they were kept had been touched by an 'am ha-arez and, being moist, received the uncleanness imparted to them by the jar which, by Rabbinical enactment, had become unclean by the touch of the 'am ha-arez.
5. Keeping olives in a broached container is clear evidence that the owner had no desire to retain the sap that exudes from the olives; and only liquids which are desired by the owner render the fruit susceptible to Levitical uncleanness.
6. And thus the undesired 'moisture remained on the olives. As such moisture does not render the fruit susceptible to uncleanness (v. previous note) the olives may safely be eaten even by the scrupulous.
7. Because in their opinion the moisture that exudes from the olives is regarded as a fruit juice which does not render food susceptible to Levitical uncleanness.
8. The moisture is regarded by them as actual oil which does render food susceptible to uncleanness. Broaching is consequently necessary in order to indicate thereby that the owner had no desire to preserve the liquid.
9. I.e., the liquid, having clearly been shewn to be unwanted, does not render the olives susceptible to Levitical uncleanness. 'Ed. IV, 6.
10. R. Johanan the Horonite.
11. Lit., 'all his deeds he only did'.
12. Beth Shammai.
13. Lit., 'that is his greatness'; i.e., his conduct was remarkable and worthy of note in that he acted according to the ruling of Beth Hillel despite the practice of his colleagues of acting in accordance with the rulings of their own School.
14. Lit., 'what was his greatness'; he only acted on the same lines as the other disciples of Beth Shammai. Consequently it must be concluded that Beth Shammai did act in accordance with their own rulings.
15. [A locality in Judaea; on the identification of the other names, v. Klein MGWJ 1910, 25ff, and 1917, 135ff and Buchler Priester, p. 186.]
16. Who, in accordance with the ruling of Beth Hillel, married strangers without previously performing halizah with the levirs.
17. Beth Shammai.
18. As the rivals, acting on the ruling of Beth Shammai, might have married the brothers, their children who, according to Beth Hillel, would thus be descendants of marriages forbidden under the penalty of kareth, would be deemed to be bastards. These would certainly resent R. Joshua's declaration in favour of Beth Hillel, and his life would thus be in danger.
19. No one could possibly resent his decision since no one would be adversely affected by it. Cf. supra p. 83, n. 10, final clause.
20. Infra 49a. Now, even if he had decided in favour of Beth Hillel no one would have been degraded thereby to the level of a bastard. Why then was he afraid?
21. A descendant from a marriage punishable by kareth.
22. Though not actually a bastard, he would, were he a kohen, he disqualified from the priesthood.
23. Born from her marriage with a High Priest.
24. A widow is forbidden only to a High Priest. V. Lev. XXI, 14.
25. V. note 8.
26. Cur. edd., 'etc.'
27. A rival is forbidden to Israelites as well as priests.
28. Strangers without previous halizah with the levirs.
29. Are the children of such marriages, which are forbidden by a negative precept, disqualified from the priesthood?
30. Since the halachah is according to Beth Hillel.
31. A daughter.
32. After she had been married to another man. Such remarriage is also forbidden (v. supra note 2) by a negative precept (V. Deut. XXIV, 1-4.)
33. In this case according to Beth Hillel, as in the case of a rival's son according to Beth Shammai; both cases coming under the prohibition of a negative precept.
34. V. p. 84, n. 10.
35. V. p. 84, n. 8.
36. A rival.
37. A rival is forbidden to Israelites as well as to priests.
38. On the death of the High Priest to whom she was unlawfully married she may not marry any more even an ordinary priest, and as she was a priest's daughter she is henceforth forbidden to eat terumah. On a woman, however, who was remarried after divorce no new restrictions are imposed.