Babylonian Talmud: Tractate Yebamoth

Folio 23a

Might it not be suggested that it excludes those who are subject to the penalties of negative precepts?¹ — R. Papa²  replied: The betrothal of those forbidden under negative precept is valid,³  for it is written in the Scriptures, If a man have two wives, the one beloved and the other hated;⁴  can it be said that the Omnipresent loves the one⁵  or hates the other?⁶  But 'beloved' means beloved in her marriage;⁷  'hated' means hated in her marriage;⁸  and yet the All Merciful has said if … have.⁹  Might it be taken to exclude those who are liable to kareth?¹⁰  — Raba replied: Scripture said, The nakedness of thy sister, the daughter of thy father, or the daughter of thy mother, whether born at home, or born abroad,¹¹  whether your father is told, 'You may keep her' or whether your father is told, 'Let her go',¹²  the All Merciful said, 'She is thy sister'.

Will you suggest [that what is meant is]: Whether your father is told, 'You may keep her' or whether your father is told, 'Let her go'. the All Merciful said, 'She is thy sister', to include his sister from a slave and a heathen! — Scripture stated, The father's wife's daughter,¹³  only she with whom your father can enter into marital relationship, but a sister from a slave or a heathen is excluded.¹⁴  And what ground is there for this?¹⁵  — It is logical to include those subject to kareth since generally¹⁶  their betrothal is valid.¹⁷  On the contrary! A slave and a heathen should have been included since on embracing the Jewish faith, betrothal with himself is also valid! — When any of these adopts the Jewish faith she becomes a different person.¹⁸

Whence do the Rabbis deduce the exclusion of a slave and a heathen? — They deduce it from The wife and her children shall be her master's.¹⁹  And R. Jose son of R. Judah? — One text refers to a slave and the other to a heathen. And both are required; for had we been informed [concerning the exclusion of the] slave, it might have been thought [that this was so in her case] because she has no recognized ancestry, but not in that of a heathen who has recognized ancestry. And had we been informed [of the exclusion of the] heathen, it might have been assumed [that this was so In her case] because she stands under no obligation In relationship to the observance of commandments,²⁰  but not In that of a slave who is [in some respects] attached to the observance of the commandments.²¹  Hence both were required.

With reference to the Rabbis, we have discovered [the reason for the exclusion of a] slave; whence do they derive [the exclusion of the] heathen? And should you suggest that we might derive it by inference from the slave, those²²  were surely needed!²³  R. Johanan replied in the name of R. Simeon b. Yohai: Scripture stated, For he will turn away thy son from following Me;²⁴  'thy son born from an Israelitish woman is called thy son²⁵  but 'thy son who was born from a heathen is not called thy son²⁵  but her son.²⁶  Said Rabina: From this it follows²⁷  that the 'son of your daughter' who derives from a heathen is called 'thy son'.²⁸  Does this imply that Rabina is of the opinion that if a heathen or a slave had intercourse with a daughter of Israel the child is considered fit!²⁹ — Though he is admittedly no bastard neither is he considered fit; he is rather regarded³⁰  as a tainted Israelite.³¹

But does not that text³²  occur in connection with the seven nations?³³  — For he will turn away³²  includes all who turn away. This is satisfactory if we follow R. Simeon who expounds³⁴  his own reasons for Scriptural precepts;³⁵  whence, however, do the Rabbis³⁶  derive it according to their view?³⁷  — Who is the Tanna³⁸  who disputes the opinion of R. Jose son of R. Judah? It is R. Simeon.

1. If his father, e.g.. had married a bastard, who is forbidden by a negative Precept. the daughter from such a union should not be regarded as his legitimate sister.
2. Aruch reads, 'Raba'.
3. Hence the sisterhood must also be deemed legal.
4. Deut. XXI, 15.
5. Lit., 'is there a loved one before the Omnipresent'.
6. I.e., the husband's love or hatred could not obviously influence a divine law; why then should his love or hatred be mentioned at all?
7. l.e., permitted to marry him.
8. I.e., forbidden to marry.
9. [H], (rt. [H] 'to be'). i.e., the betrothal is Sc. remains valid.
10. I.e., a daughter from such a marriage which is legally invalid should not be deemed one's legal sister.
11. Lev. XVIII, 9.
12. Whether he is permitted to live with her ([H] at home) or not ([H] abroad).
13. Lev. XVIII, 11.
14. Since betrothal or marriage with either is invalid.
15. Lit., 'and what do you see', to apply the excluding text to a slave and a heathen. and the including one to those subject to kareth. Why not reverse the application?
16. Lit., 'to the world', to those who are not forbidden relatives.
17. The betrothal of a slave or a heathen, however, is always invalid.
18. And is no longer regarded as a heathen or slave.
19. Ex. XXI, 4.
20. A heathen is under no obligation to observe the precepts of the Torah.
21. A slave must observe certain commandments. V. Hag. 40.
22. The texts speaking of the slave and the heathen, supra.
23. In connection with their own context. They are not available for any deduction.
24. Deut. VII, 4. The pronoun he in this clause must, according to Talmudic exposition, refer to the antecedent son in v. 3' thy daughter thou shalt not give unto his son, and not to son in the clause, nor his daughter shalt thou take unto thy son. Had the reference been to the latter the reading in v. 4 would have been, for SHE (i.e., the heathen woman) will turn away thy son. 'He' must consequently refer to the heathen husband of the Israelitish woman who would turn away the son of his Israelitish wife, the (grand)son of her father. The son of his son born from the heathen. however, is obviously not called his (grand)son since, 'For he will turn etc.' does not apply to him.
25. [H] thy son or grandson.
26. I.e., he is a heathen like his mother.
27. Cf. supra n. 5.
28. V. Kid. Sonc. ed. p. 345 nn. 5, 6.
29. This is a question in dispute, infra 450. [Cf. parallel passage in Kid. 68b where the reading is, the child is a mamzer, a reading to which Tosaf. (s.v. [H]) gives preference.]
30. Lit., 'called'.
31. For further notes, v. Kid., Sonc. ed. p. 345ff
32. Deut. VII, 4, from which deduction has just been made.
33. Enumerated in Deut. VII, I. How, then, could the same text be applied to other nations?
34. Even where Scripture assigns no reason.
35. V. B.M. 115a; the explicit reason, For he will turn etc. given here is consequently superfluous and may be used for the deduction mentioned.
36. Who do not assign reasons for Biblical precepts unless Scripture itself supplies them.
37. The text, For he will turn etc. being required as a reason for the precepts enunciated in that context itself.
38. Designated supra as 'the Rabbis'.

MISHNAH. IF A MAN BETROTHED ONE OF TWO SISTERS AND DOES NOT KNOW WHICH OF THEM HE HAS

BETROTHED, HE MUST GIVE A LETTER OF DIVORCE TO THE ONE AS WELL AS TO THE OTHER.¹  IF HE DIED,²  LEAVING A BROTHER,³  THE LATTER MUST PARTICIPATE IN THE HALIZAH WITH BOTH OF THEM.⁴  IF HE HAD TWO BROTHERS,³  ONE IS TO PARTICIPATE IN THE HALIZAH⁵  AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE.⁶  IF THEY ANTICIPATED [THE BETH DIN] AND MARRIED THEM⁷  THEY ARE NOT TO BE [PARTED FROM] THEM.⁸

IF TWO MEN BETROTHED TWO SISTERS AND THE ONE DOES NOT KNOW WHOM HE BETROTHED AND THE OTHER DOES NOT KNOW WHOM HE BETROTHED, THE ONE MUST GIVE TWO LETTERS OF DIVORCE AND THE OTHER MUST ALSO GIVE TWO LETTERS OF DIVORCE. IF THEY DIED AND THE ONE LEFT A BROTHER AND THE OTHER ALSO LEFT A BROTHER, THE ONE BROTHER MUST PARTICIPATE IN THE HALIZAH WITH THE TWO WIDOWS AND THE OTHER ALSO MUST PARTICIPATE IN THE HALIZAH WITH THE TWO WIDOWS.⁹  IF ONE¹⁰  LEFT ONE BROTHER AND THE OTHER LEFT TWO, THE ONE BROTHER MUST PARTICIPATE IN THE HALIZAH WITH THE TWO WIDOWS¹¹  AND [AS REGARDS] THE TWO, ONE PARTICIPATES IN THE HALIZAH¹²  AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE.¹³  IF THEY ANTICIPATED [THE BETH DIN] AND MARRIED THEM,¹⁴  THEY ARE NOT TO BE DEPRIVED OF THEM.¹⁵  IF ONE¹⁰  LEFT TWO BROTHERS AND THE OTHER¹³  ALSO LEFT TWO, ONE BROTHER OF THE ONE PARTICIPATES IN THE HALIZAH WITH ONE WIDOW AND ONE BROTHER OF THE SECOND PARTICIPATES IN THE HALIZAH WITH THE OTHER WIDOW, [AND THEN THE OTHER] BROTHER OF THE FIRST MAY CONTRACT LEVIRATE MARRIAGE WITH THE HALUZAH OF THE SECOND¹⁶  AND [THE OTHER] BROTHER OF THE SECOND MAY CONTRACT THE LEVIRATE MARRIAGE WITH THE HALUZAH OF THE FIRST. IF BOTH¹⁷  ANTICIPATED [THE BETH DIN] AND PARTICIPATED IN THE HALIZAH,¹⁸  THE [OTHER] TWO MUST NOT BOTH CONTRACT THE LEVIRATE MARRIAGE,¹⁹  BUT ONE MUST PARTICIPATE IN THE HALIZAH²⁰  AND THE OTHER MAY THEN CONTRACT THE LEVIRATE MARRIAGE.²¹  IF BOTH²²  ANTICIPATED [THE BETH DIN]²³  AND MARRIED²⁴  THEY ARE NOT TO BE DEPRIVED OF THEM.²⁵

GEMARA. Is it to be inferred from here that even betrothal which cannot culminate in connubial intercourse²⁶  is also valid?²⁷  — Here we are dealing with the case where they were known²⁸  but were later confused. This may also be proved by deduction, since it was stated, AND HE DOES NOT KNOW²⁹  and it was not stated 'and it was not known'³⁰  This proves it.

What, then, does our Mishnah teach us?³¹  — The second clause was necessary:³²  IF HE DIED AND LEFT A BROTHER, THE LATTER MUST PARTICIPATE IN THE HALIZAH WITH BOTH OF THEM. IF HE HAD TWO BROTHERS, ONE IS TO PARTICIPATE IN THE HALIZAH AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE, only halizah must be first and the levirate marriage afterwards, but not the levirate marriage first, since, thereby, he might infringe [the interdict against] the sister of her who is connected with him by the levirate bond.³³

IF TWO MEN BETROTHED TWO SISTERS etc. Does this imply that a betrothal which cannot culminate in connubial intercourse is also valid?³⁴  — Here also it is a case where they were known.³⁵  but were subsequently confused. This may also be proved by deduction, since it was stated, AND THE ONE DOES NOT KNOW,³⁶  and it is not stated 'and it is not known'.³⁷  This proves it.

What, then, does our Mishnah teach us?³⁸  — It was necessary to have the latter clause,³⁹  IF THEY DIED … AND ONE LEFT ONE BROTHER AND THE OTHER LEFT TWO, THE ONE BROTHER MUST PARTICIPATE IN THE HALIZAH WITH THE TWO WIDOWS AND, [AS REGARDS] THE TWO, ONE PARTICIPATES IN THE HALIZAH AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE.⁴⁰  Is not this obvious, being in the same case as the first clause?⁴¹ — It might have been assumed that [levirate marriage should be forbidden in the case of] two brothers as a preventive measure against the case Of one, hence we were taught [that it was not so], and also that halizah must be first and the levirate marriage afterwards, but the levirate marriage must not take place first, for thereby, one might infringe [the interdict against] a yebamah's marriage to a stranger.⁴²

IF ONE LEFT TWO BROTHERS AND THE OTHER ALSO LEFT TWO etc. What need was there again for this statement? It is, surely. the same!⁴³  — It might have been assumed that [the marriage should be forbidden] as a preventive measure against marrying without previous (halizah,⁴⁴  hence we were taught [that no such measure Was enacted].⁴⁵  Wherein does this case differ from the following in which we learned: In the case of four brothers two of whom were married to two sisters, and those who were married to the sisters died, behold their widows may only perform the halizah but may not be taken in levirate marriage [by either of the levirs]?⁴⁶ — What a comparison!⁴⁷

1. He is forbidden to live with either since each might be 'his wife's sister'.
2. Without issue.
3. Who survived him.
4. Since it is not known which is his sister-in-law. He may not marry the one and submit to halizah from the other, because the sister of a haluzah (v. Glos.) is Rabbinically forbidden. Even prior to the halizah with the one he may not marry the other; for if she is not his sister-in-law she is still forbidden to him as the sister of his zekukah (v. Glos.)
5. With one of the widows.
6. With the other, subsequent to the halizah of the first. This procedure is safe in either ease; if the second widow is really his sister-in-law he is legally entitled to marry her. But even if she is not, she is no longer forbidden as the sister of the first who was his zekukah since the halizah has severed the bond.
7. Each brother married one of the sisters.
8. Since each of them is entitled to marry one of the widows either as his yebamah (v. Glos.) or as a stranger. The question of the forbidden marriage of the sister of a zekukah does not arise, since both are now married, and the marriage of the zekukah to the one brother has severed her levirate bond with the other.
9. Neither may marry any of the widows since either might happen to be the sister of his zekukah.
10. Of the deceased.
11. For the reasons explained supra p. 138, n. 9.
12. And thus, in case she is the actual yebamah, severs the levirate bond between her and the brothers. Her sister may then be married by the other brother in any ease: If she is the sister-in-law he may rightly marry her; and if not, she is no longer forbidden as the sister of a zekukah in view of the fact that the halizah of the other had severed that bond.
13. V. previous note.
14. Each brother married one of the sisters.
15. V. p. 138. n. 13.
16. This Procedure enables both widows to marry. because in the case of each it may be said: If she is his yebamah, he may marry her since his brother did not participate in the halizah with her but with her sister who was a Perfect stranger to him, and the halizah with her is of no legal value. If, on the other hand, she is not his yebamah, he may certainly marry her as a stranger. The question of the 'sister of a zekukah' does not arise, since that bond has in any case been severed by the halizah in which his brother had participated with her sister.
17. Brothers of one of the deceased.
18. With both widows.
19. One brother with the one widow and the other with the other widow; because whichever widow any one of them would desire to marry might be the sister of his [H].
20. With one 'of the widows.
21. With the other sister. For the reason cf. supra p. 139, n. 4.
22. The second two brothers.
23. After halizah was performed with the first.
24. Each one of them one of the sisters.
25. Cf. supra p. 138. n. 13.
26. It is now assumed that even at the time of the betrothal it was not known which of the sisters was betrothed; when, for instance, the man said 'I betroth one of you' and both appointed an agent to receive on their behalf the token of betrothal. In such a case the man may have no connubial intercourse with either of the women since each might be his wife's sister.
27. Since our Mishnah requires him to give a letter of divorce to each. Why then did this question remain a matter in dispute between Abaye and Raba in Kid. 51a?
28. At the time of the betrothal, as to which was, and which was not the betrothed one. Hence it was a betrothal which could culminate in connubial intercourse.
29. I.e., now.
30. Which would have implied that the identity of the betrothed was never known.
31. If the betrothal was valid and the man does not know now whom he betrothed it is self-evident that both women must be divorced!
32. And because of the second the first also had to be stated.
33. His zekukah. V. supra p. 138, n. 11,
34. Cf.supra p. 140, n. 11.
35. V. p. 140. n. 12.
36. I.e., now,
37. V. p. 140, n. 14.
38. V. p. 140, n. 15.
39. And because of the second the first also had to be stated.
40. This indicates that halizah must take place first.
41. Where it was stated that if there were two brothers one submits to halizah first while the other may subsequently contract the levirate marriage.
42. Lit., 'a yebamah for the street'. A yebamah who is subject to the levirate marriage may not be married by a stranger before the levir has submitted to halizah. For further notes on the whole passage v. Kid., Sonc. ed. pp. 26off.
43. As the one already made earlier in our Mishnah: ONE PARTICIPATES IN THE HALIZAH AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE. There it is a case of two brothers and here also of two groups of two, one of each participating in halizah and the other contracting levirate marriage.
44. And each of the two brothers so marrying would infringe the prohibition against marriage of a doubtful yebamah and the sister of a zekukah.
45. This could not have been inferred from the previous clause where only one marriage takes place. The fact that at least one of the sisters may not be married and must perform halizah only, would sufficiently indicate that in the case of the other also halizah by one brother must precede the marriage by the other. Where, however, as here, both sisters are married it might well have been considered likely that the law requiring previous halizah might be overlooked.
46. 'Ed. V, 5, infra 26a. [According to Rashi (he question is from the concluding part of that Mishnah which reads, 'If they had forestalled (the Beth din) and married them, they must put them away', whereas in our Mishnah it is ruled that they are not to be parted. Aliter: In our Mishnah levirate marriage may take place after halizah had been performed, whereas in the other Mishnah no levirate marriage is allowed at all for fear it is contracted before halizah. v. Tosaf. ha-Rosh.]
47. Lit., 'thus now'.