Babylonian Talmud: Tractate Yebamoth

Folio 19a

from one house.¹  Nor must he take one In levirate marriage and thereby exempt the other, for it is possible that the levirate bond is not as binding as actual marriage, and the two sisters-in-law would thus be coming from two houses.²  From this it clearly follows that he³  is in doubt.⁴  And should you reply that Biblically one of the widows may indeed be taken in levirate marriage and the other is thereby exempt, but that this procedure had Rabbinically been forbidden as a preventive measure against the possibility of the assumption that where two sisters-in-law came from two houses⁵  one may be taken in levirate marriage and the other is thereby exempt without any further ceremonial;⁶  surely [it may be pointed out] R. Simeon's reason is because of his doubt as to the validity of the levir's ma'amar!⁷  For it was taught: R. Simeon said to the Sages, 'If the ma'amar of the second brother is valid he⁸  is marrying the wife of the second; and if the ma'amar of the second is invalid he is marrying the wife of the first'! — Said Abaye to him:⁹  Do you not make any distinction between the levirate bond with one levir and the levirate bond with two levirs? It is quite possible that R. Simeon said the levirate bond is like actual marriage in the case of one levir only¹⁰  but not in that of two levirs.¹¹

Does R. Simeon, however, recognize such a distinction?¹²  Surely it was taught: R. Simeon has laid down a general rule that wherever the birth¹³  preceded the marriage¹⁴  the widow is neither to perform halizah nor to be taken in levirate marriage. If the marriage¹⁴  preceded the birth¹³  she may either perform the halizah or be taken In levirate marriage. Does not this apply to one levir?¹⁵  And yet It is stated 'she is neither to perform halizah nor to be taken in levirate marriage'!¹⁶  — No; it applies to two levirs.¹⁷  But in the case of one levir,¹⁷  may she in such circumstances also¹⁸  either perform halizah or contract levirate marriage? If so, instead of stating, 'If the marriage preceded the birth she may either perform halizah or be taken in levirate marriage' the distinction should have been drawn in this very case itself,¹⁹  thus: 'This applies only to the case of two brothers.in.law but with one brother-in-law she may either perform halizah or be taken in levirate marriage'! — The entire passage dealt with two brothers-in-law.²⁰

What, then, is meant by the general rule?²¹  And a further objection²²  was raised by R. Oshaia: If there were three brothers and two of them were married to two sisters, or to a woman and her daughter, or to a woman and her daughter's daughters or to a woman and her son's daughter, behold these²³  must²⁴  perform the halizah²⁵  but may not be taken in levirate marriage.²⁶  R. Simeon, however, exempts them.²⁷  Now, if it be assumed that R. Simeon is of the opinion that the 'levirate bond' has the same force as actual marriage, let [the third brother] take the first widow²⁸  In levirate marriage and let the other²⁹  be thereby exempt.³⁰  R. Amram replied: The meaning of 'exempt'³¹  is that he exempts the second widow,³²  But has it not been taught: R. Simeon exempts them both'?³³  -Raba replied: The second of the one pair and the second of the other pair.³⁴  Raba, however, was mistaken [in the interpretation] of the four pairs.³⁵  For, in the first instance, we have twice the word 'or',³⁶  and, furthermore, [if Raba's interpretation were the correct one]³⁷  it should [have read], 'R. Simeon exempts the four'.³⁸  Furthermore, it was taught: R. Simeon exempts both³⁹  from the halizah and from the levirate marriage, for it is said in the Scriptures, And thou shalt not take a woman to her sister, to he a rival to her,⁴⁰  when they become rivals to one another⁴¹  you may not marry even one of them!⁴²  But, said R. Ashi: If they⁴³  had become subject [to the levir] one after the other, the law would indeed have been so.⁴⁴  Here,⁴⁵  however, we are dealing with the case where both become subject to him at the same time; and R. Simeon shares the view of R. Jose the Galilean who stated, 'It is possible to ascertain simultaneous occurrence'.⁴⁶

R. Papa⁴⁷  said: R. Simeon differs⁴⁸  only where the levirate marriage⁴⁹  took place first, and the birth⁵⁰  afterwards; he does not differ, however, when the birth⁵⁰  occurred first, and the marriage⁴⁹  took place afterwards; and both these cases⁵¹  are required on account of the Rabbis,⁵²  and⁵³  [a stronger case is given after a weaker] 'not only this⁵⁴  but also that'.⁵⁵

It was taught in agreement with R. papa⁵⁶  and in contradiction to R. Oshaia: If one of two contemporary brothers died without Issue, and the second intended to address a ma 'amar to his deceased brother's wife but before he was able to do so a third brother was born and he himself died, the first widow is exempt⁵⁷  as 'the wife of the brother who was not his contemporary', and the second⁵⁸  may either perform the halizah or be taken in levirate marriage. If, however, he⁵⁹  addressed a ma'amar to the widow and subsequently a third brother was born, or if a third brother was born first and he⁵⁹  addressed the ma'amar to the widow subsequently, and died, the first widow is exempt⁵⁷  as 'the wife of his brother who was not his contemporary' while the second⁵⁸  must perform the halizah,⁶⁰  though she may not be taken in levirate marriage.

1. One as actual, the other as virtual wife of the same husband, the second brother. The Torah required the levir 'to build up his brother's house' (Deut. XXV, 9) from which it is inferred that it is his duty to build up only a house but not houses, i.e., to marry his brother's one wife but not his two wives.
2. Both of whom are subject to the levirate marriage. and one of whom cannot exempt the other.
3. R. Simeon.
4. As to whether a levirate bond exists. Cf. supra p. 105, n. 9.
5. Where two brothers died simultaneously; when the one widow is as much tied to him as the other.
6. Lit., 'with nothing'.
7. Lit., 'saying and not saying' or 'ma'amar and not ma'amar'.
8. The third brother.
9. R. Joseph.
10. As in our Mishnah where the first brother was survived by one brother only. The subsequent birth of a third brother does not affect the levirate any more than it can affect an actual marriage.
11. Of which the cited Baraitha speaks. There, when the first brother died he was survived by two brothers.
12. Between one levir and two.
13. Of a third brother.
14. Of the second brother with the widow of the first.
15. Who survived the first deceased brother after whose death the third brother was born.
16. Which proves that even in the case of one levir R. Simeon does not recognize the existence of a levirate bond.
17. Cf. supra note 4.
18. Where the birth of the third preceded the marriage of the second.
19. Where birth preceded marriage.
20. The Tanna preferred to draw a distinction between two sets of circumstances both of which relate to the brothers-in-law rather than to draw a distinction between one brother-in-law and two brothers-in-law in the same set of circumstances.
21. According to which neither halizah nor levirate marriage is allowed whenever the birth preceded the marriage. Both, according to what has just been said, are permissible in the case of one levir.
22. Against the statement that R. Simeon regards the levirate bond as actual marriage.
23. The women enumerated.
24. If their husbands, the two brothers, died without issue.
25. With the third surviving brother.
26. By that brother; since both are equally related to him by the same 'levirate bond' and each is forbidden to him as the consanguineous relative of the woman connected with him by such bond.
27. Infra 28b; even from the halizah.
28. I.e., the widow whose husband bad died first, and who, through the 'levirate bond', is regarded as the levir's virtual wife even before he married her.
29. Her consanguineous relative, the widow of the second deceased brother.
30. As a forbidden relative; being consanguineous with his virtual wife.
31. In R. Simeon's statement.
32. Whose husband died last. The first, however, is to be taken in levirate marriage.
33. Infra 28b, Rid. 50b.
34. 'Both' used by R. Simeon refers to the second of each pair. Raba assumed that the two brothers had married two sisters and also a mother and her daughter. One of the first is taken in levirate marriage and the others are thereby exempt either as 'forbidden relatives' or 'rivals'.
35. Enumerated in the cited Mishnah, assuming as he did that it meant marriage by the. two brothers of more than one pair (v. previous note).
36. 'Or' occurs after the enumeration of each pair.
37. Viz., that R. Simeon's exemption refers to the second of each pair.
38. Since four pairs were enumerated.
39. Widows of the first brother.
40. Lev. XVIII, 18.
41. As in the case cited, where each of the two brothers was married to one of each pair, and when the first brother died all his widows became subject to levirate marriage with the second brother and thus become rivals.
42. Even the first widow. Consequently R. Simeon's exemption applies to all, which shews that he recognizes no distinction on the question of the levirate bond between one levir and two levirs!
43. The widows.
44. That the 'levirate bond' in the case of one levir being recognized even by R. Simeon as being as forcible as actual marriage. the levir (the third brother) marries the first while the other is exempt, though her husband (the second brother) died before he actually married the first.
45. In the Mishnah cited by R. Oshaia in objection against the view attributing to R. Simeon a distinction between one levir and two levirs.
46. I.e., to ascertain that two things occur exactly at one and the same moment, Bek. 17a. Hence it may happen that both brothers die simultaneously and both widows simultaneously become subject to the third brother and consequently, on the view of R. Simeon, both exempt from halizah and levirate marriage.
47. Disagreeing with R. Oshaia, supra 18b.
48. From the Rabbis of our Mishnah.
49. With the second brother.
50. Of the third brother.
51. 'Marriage before birth' in our Mishnah and 'birth before marriage' in the previous one.
52. To shew that they exempt not only in the one case but also in the other. Cf. infra notes 11-12
53. As to the objection raised (supra 18b): Since they exempt in the second case, what need was there to mention the first which could have been inferred from it a minori ad majus?
54. The case in the first Mishnah, the birth of the third brother before the marriage of the second, where the birth occurred while the widow was still under a prohibition to marry him.
55. The case in the second Mishnah, where the birth of the third brother occurred when the widow was already permitted to him.
56. That when the birth of the third brother occurred prior to the marriage of the second with the widow of the first, R. Simeon agrees with the Rabbis.
57. From marriage and halizah with the third brother.
58. The widow of the second brother.
59. The second brother.
60. The ma'amar addressed to the first widow not having 'the same force as actual marriage to render the second brother's wife her rival to be exempt from halizah as well as from the levirate marriage with the third brother.

R. Simeon said: Intercourse or halizah with the one of them¹  exempts her rival.²  If, however, he³  participated in halizah with her to whom [the second brother had] addressed the ma'amar, her rival is not exempt.⁴  If he¹  married her⁵  and died, and a [third] brother was subsequently born, or if a [third] brother was born, and subsequently he married her⁵  and died, both [widows] are exempt from the halizah and the levirate marriage. If he married her⁵  and [after that a third] brother was born and then he himself died, both widows are exempt from the halizah and the levirate marriage; this is the opinion of R. Meir. R. Simeon, however, said: Since, when he⁶  came [into the world] he found her⁷  permitted to him,⁸  and she was never forbidden to him even for one moment, he⁶  may take in levirate marriage whichever of them he desires or he may participate in the halizah with whichever of them he desires. Now, in accordance with whose view was the case in the latter clause⁹  taught?¹⁰  If it be suggested that it was taught in accordance with the view of R. Meir,¹¹  it might be observed that, as R. Meir draws no distinction between marriage that was followed by birth and birth that was followed by marriage, all these cases should have been combined in one statement!¹²  Consequently it must have been in accordance with the view of R. Simeon who thus differs¹³  only in the case where the levirate marriage was followed by birth'¹⁴  but does not differ¹³  where birth was followed by levirate marriage.¹⁵  Our point is thus proved.

The Master said, '[If] the second intended to address a ma'amar to his deceased brother's wife but before he was able to do so, a third brother was born while he himself died, the first widow is exempt as "the wife of the brother who was not his contemporary" and the second may either perform halizah or be taken in levirate marriage'. What is meant by 'he intended' and what by 'he was not able'? If he did it, it is an accomplished fact;¹⁶  and if he did not do it, it is not an accomplished fact!¹⁶  -In fact [this is the meaning:] 'He intended' with her consent and 'he was not able' with her consent but against her wish.¹⁷

This,¹⁸  however, is not in agreement with the view of Rabbi. For it was taught: If a man addressed a ma'amar to his deceased brother's wife against her consent, Rabbi regards this as legal [betrothal].¹⁹  But the Sages say, This is not a legal [betrothal]. What is Rabbi's reason? — He deduces [this form of betrothal] from the intercourse with the wife of a deceased brother; as the Intercourse with the wife of a deceased brother may be effected against her will²⁰  so may the betrothal of the wife of a deceased brother be effected against her will. And the Rabbis? — They deduce it from the usual form of betrothal;²¹  as the usual betrothal can be effected with the woman's consent only so may the betrothal of a yebamah²²  be effected with her consent only. On what principle do they differ? — One Master²³  is of the opinion that matters relating to a yebamah should be inferred from matters relating to a yebamah and the Masters²⁴  are of the opinion that matters of betrothal should be inferred from matters of betrothal.²⁵

'If, however, he addressed a ma'amar to the widow, and subsequently a third brother was born, or if a third brother was born first and he²⁶  addressed the ma'amar to the widow subsequently and died, the first widow is exempt as "the wife of his brother who was not his contemporary" while the second must perform the halizah, though she may not be taken in levirate marriage. R. Simeon said: Intercourse or halizah with the one of them exempts her rival'.²⁷  What is R. Simeon referring to?²⁸  If it should be suggested, 'To the case where the third brother was born first and he²⁶  addressed the ma'amar subsequently's surely it has been stated, that where birth preceded marriage R. Simeon does not differ from the Rabbis!²⁹  — But [the reference is] to the case where the ma'amar was addressed first and the third brother was born subsequently. Hence, 'if he participated in halizah with her to whom [the second brother had] addressed the ma amar, her rival is not exempt', because³⁰  the [subjection of the] rival³¹  is a certainty³²  while [the subjection of her] to whom the ma'amar had been addressed is doubtful,³³  and no doubt may over-ride³⁴  a certainty.

R. Manasseh b. Zebid sat in the presence of R. Huna, and in the course of the session he said: What is R. Simeon s reason?³⁵  — 'What is R. Simeon's reason'! [Surely it is] as it has been stated: The reason is 'because when he was born he found her permitted to him, and she was never forbidden him even for one moment'!³⁶  But [the question rather is] what is the reason of the Rabbis?³⁷  -Scripture said, A/Id take her to him to wife, and perform the duty of a husband's brother unto her,³⁸  the former levirate attachment still remains with her.³⁹  But then what of the following⁴⁰  where we learned, 'If he⁴¹  married her⁴²  she is regarded as his wife in every respect'⁴³  and [in connection with this] R. Jose b. Hanina said, 'This teaches

1. I.e., the second widow.
2. As will be explained infra this applies to the case where the ma'amar was addressed to the first widow and the third brother was born subsequently, R. Simeon being of the opinion that it is uncertain whether the ma'amar has the same force as actual marriage or not. The rival is in either case exempt: If the ma'amar was binding, then even the first widow is according to R. Simeon permitted to the third brother, since it is a case of 'marriage prior to birth', and the halizah with the second consequently exempts the first as her rival, both having been married to the same husband; and if the ma'amar was not binding, the first widow is forbidden to the third brother as the widow of 'the brother who was not his contemporary' while the second is not her rival and may be taken in levirate marriage or perform the halizah.
3. The third brother.
4. Since it is possible that the ma'amar is not binding and she is in consequence forbidden to him as 'the wife of his brother who was not his contemporary' and her halizah has no validity.
5. The first widow.
6. The third brother.
7. The first widow.
8. Having been born after her marriage with the second brother had entirely severed her connection with the first brother.
9. Marriage between the second brother and the first widow, followed by the birth of the third brother, which again was followed by the death of the second.
10. I.e., in accordance with whose view was it necessary to have the case of marriage prior to birth separated from that of marriage after birth?
11. To indicate that even in such a case he forbids marriage.
12. Lit., 'let him mix them and teach them'; the third case, 'if he married her and (after that a third) brother was born and then he himself died' should not have been separated from the previous two cases, since according to R. Meir it matters little whether marriage of the second brother with the first widow preceded or followed the birth of the third brother.
13. From the Rabbis.
14. As R. Papa stated. V. supra note 7.
15. Contrary to the opinion of R. Oshaia.
16. And the intention is of no consequence.
17. The object of the statement being that the ma'amar has not even partially the force of marriage if it was made against the woman's will. The second widow may, therefore, be taken in levirate marriage.
18. That the ma'amar addressed to the wife of a deceased brother (Yebamah. v. Glos.) is invalid unless she consented to the betrothal.
19. Lit., 'he acquired'.
20. V supra 8b.
21. The betrothal of a stranger.
22. The wife of a deceased brother.
23. Rabbi.
24. The Sages.
25. Rid. 440.
26. The second brother.
27. Supra 19a-b, q.v. for notes.
28. In differing from the Rabbis. Lit.,'on what does he stand'.
29. But agrees that the first widow in relation to the third brother is to be regarded as 'the wife of his brother who was not his contemporary'. Now, since it is possible that the ma'amar is as valid as actual marriage, how could R. Simeon have permitted the rival of a forbidden relative? Furthermore, the expression 'she exempts her rival' would be unsuitable, since her rival has all the time been exempt as the 'wife of the brother who was not his contemporary'.
30. Lit., 'what is the reason'.
31. To the third brother.
32. If the ma'amar was valid both widows are subject to the third brother, since it is a case of marriage before birth; if the ma'amar is invalid, the second is still subjected to the levir since, no marriage having taken place, she is not the rival of a forbidden relative.
33. It being possible that the ma'amar is not valid, and the first widow thus remains forbidden to the third brother as 'the wife of his brother who was not his contemporary'. Halizah with her is, therefore, of no validity and cannot exempt the second widow.
34. Lit., 'puts out'.
35. For permitting levirate marriage with the third brother in the case where the second brother had married the first widow prior to the birth of the third brother.
36. Supra, q.v. for notes.
37. Why do they forbid the levirate marriage between the first widow and the third brother, where the only relationship between them is through the second brother, the relationship through the first brother having ceased with the levirate marriage of the widow by the second brother prior to the birth of the third?
38. Deut. XXV, 5.
39. [H] 'taking her to wife', [H], does not remove from her the designation of 'brother's wife' [H].
40. Lit., 'but that'.
41. A brother-in-law.
42. The widow of his deceased childless brother.
43. Infra 38a. Keth. 80b.