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Babylonian Talmud: Tractate Yebamoth
There,1 if one is to follow the view of him who said that a levirate bond does exist,2 a levirate bond exists;3 and if one is to follow him who said4 that it is forbidden to annul the precept of levirate marriage,5 well, it is forbidden to annul the precept of levirate marriage. Here, however, it is possible to assume that every one will happen to get his own.6
IF BOTH ANTICIPATED [THE BETH DIN] AND MARRIED THEY ARE NOT TO BE PARTED FROM THEM etc. Shila recited: Even if both were priests.7 What is the reason?8 — Because a haluzah is only Rabbinically forbidden,9 and in the case of a doubtful haluzah10 the Rabbis enacted no preventive measures.11 But is a haluzah only Rabbinically forbidden? Surely it was taught: From Put away12 one might only infer the prohibition concerning a divorced woman; whence that of a haluzah? Hence it was explicitly stated, And a woman!13 The prohibition is really Rabbinical, and the Scriptural text is a mere prop.14
MISHNAH. THE COMMANDMENT OF THE LEVIRATE MARRIAGE DEVOLVES UPON THE [SURVIVING ELDER BROTHER]. IF A YOUNGER BROTHER, HOWEVER, FORESTALLED HIM, HE IS ENTITLED TO ENJOY THE PRIVILEGE.
GEMARA. Our Rabbis learned: And it shall be, that the firstborn15 implies16 that the commandment of the levirate marriage devolves upon the [surviving elder brother];17 that she beareth15 excludes a woman who is incapable of procreation, since she cannot bear children: shall succeed in the name of his brother,15 in respect of inheritance.18 You say, 'in respect of inheritance';19 perhaps it does not [mean that]. but, 'in respect of the name':20 [If the deceased, for Instance, was called] Joseph [the child] shall be called Joseph; If Johanan he shall be called Johanan! — Here it is stated, shall succeed in the name of his brother15 and elsewhere it is stated, They shall be called after the name of their brethren in their inheritance,21 as the 'name' that was mentioned there [has reference to] inheritance, so the 'name' which was mentioned here [has also reference] to inheritance. That his name be not blotted out15 excludes a eunuch22 whose name is blotted out.
But apart from the gezerah shawah, would it have been thought that 'name' actually signifies 'a name'? To whom, then, does the All Merciful address the instruction!26 If to the levir, the wording should have been. 'shall succeed in the name of thy brother'; if to the Beth din, the wording should have been, 'shall succeed in the name of his father's brother'!27 — It is possible that the All Merciful thus addressed the Beth din: Tell the levir, 'He28 shall succeed to the name of his29 brother'; but the gezerah shawah has come and deprived the text entirely [of its ordinary meaning].
Now that it has been stated that Scripture speaks of the elder brother only, why not assume that the firstborn must perform the duty of the levirate marriage and that any ordinary brother may not contract a levirate marriage at all!30 — If so, what need31 was there for the All Merciful to have excluded the 'wife of his brother who was not his contemporary'?32
R. Aha objected: Might it not be suggested that the exclusion33 had reference to a mother's firstborn son!34 -You could not possibly have assumed that,35 since the All Merciful has made levirate marriage dependent on inheritance, and the right of inheritance derives from the father and not from the mother.36 But might It not be suggested that where there is a firstborn the commandment of the levirate marriage shall be observed;37 where, however, there is no firstborn the commandment of the levirate marriage shall not be observed?38 Scripture stated, And one of them died;39 does not this include also the case where the firstborn died,40 and so the All Merciful has said that the younger shall perform the duty of the levirate marriage?
But perhaps41 [the text speaks of a case] where the younger died, and the All Merciful says that the firstborn shall perform the duty of the levirate marriage? — Surely, the All Merciful has excluded the wife of his brother who was not his contemporary!42
May it be suggested that where there is no firstborn the younger brother, if he forestalled [the Beth din],43 is entitled to the privilege,44 but that where there is a firstborn the younger brother, even if he forestalled him, is not entitled to the privilege? — Scrip. stated, If brethren dwell together,45 the dwelling of one brother was compared to that of the other.46 May it be suggested that where there is a firstborn one turns to the eldest47 but where there is no firstborn one does not turn to the eldest?48 Why, then, did Abaye the Elder teach that the commandment to perform the duty of the levirate marriage is incumbent Upon the elder brother; if he refuses, the younger brother is approached;49 if he also refuses,50 the elder is approached again!51 — [Scripture has designated him] as the firstborn;52 as with the firstborn the cause is his birthright, so with the elder brother the cause is his Seniority. Might it be said that when the firstborn performs the duty of the levirate marriage he also takes the inheritance53 but when an ordinary brother performs the duty of the levirate marriage, he54 does not take the inheritance?53 Scripture stated, Shall succeed in the name of his brother55 and behold he has succeeded!56
But since the All Merciful called him the firstborn;57
what practical ruling was thereby intended?1 — To impair his rights; As a firstborn does not take a double portion in his father's prospective property2 in the same way as he does in that which is already In his possession,3 so does this one4 take no [double]5 portion In [his father's] prospective property6 as he does in that which is already in his possession.7
MISHNAH. IF A MAN IS SUSPECTED OF [INTERCOURSE]8 WITH A SLAVE WHO WAS LATER EMANCIPATED, OR WITH A HEATHEN WHO SUBSEQUENTLY BECAME A PROSELYTE, LO, HE MUST NOT MARRY HER.9 IF, HOWEVER, HE DID MARRY HER THEY NEED NOT BE PARTED.10 IF A MAN IS SUSPECTED OF INTERCOURSE8 WITH A MARRIED WOMAN11 WHO, [IN CONSEQUENCE,] WAS TAKEN AWAY FROM HER HUSBAND,12 HE MUST LET HER GO EVEN THOUGH HE HAD MARRIED HER.13
GEMARA. This implies that she may become a proper prose lyte.14 But against this a contradiction is raised. Both a man who became a proselyte for the sake of a woman and a woman who became a proselyte for the sake of a man, and, similarly, a man who became a proselyte for the sake of a royal board, or for the sake of joining Solomon's servants,15 are no proper proselytes. These are the words of R. Nehemiah, for R. Nehemiah used to Say: Neither lion-proselytes,16 nor dream-proselytes17 nor the proselytes of Mordecai and Esther18 are proper proselytes unless they become converted at the present time. How can it be said, 'at the present time'? — Say 'as at the present time'!19 -Surely concerning this it was stated that R. Isaac b. Samuel b. Martha said in the name of Rab: The halachah is in accordance with the opinion of him who maintained that they were all proper proselytes. If so, this20 should have been permitted altogether!21 - On account of [the reason given by] R. Assi. For R. Assi said,22 Put away from thee a froward mouth, and perverse lip's etc.23
Our Rabbis learnt: No proselytes will be accepted in the days of the Messiah.24 In the same manner no proselytes were accepted in the days of David nor in the days of Solomon.25 Said R. Eleazar: What Scriptural [support is there for this view]? — Behold he shall be a proselyte who is converted for my own sake,'26 he who lives with you shall be settled among you,27 he only who 'lives with you' in your poverty shall be settled among you; but no other.
IF A MAN IS SUSPECTED OF INTERCOURSE WITH A MARRIED WOMAN etc. Rab said: [This28 must be confirmed] by witnesses.29 Said R. Shesheth: It seems30 that Rab made this statement while he was sleepy and about to doze off;31 for it was taught: 'If a man is suspected of intercourse with a married woman who, in consequences was taken away from her husband32 and was subsequently divorced by another man,33 he34 need not part with her once he has married her'. Now, how is this to be understood? If it is a case where witnesses35 are available, of what avail is it that another man stepped in and checked the rumour?36 [Must we] not then [conclude that this is a case] where there were no witnesses;35 and the reason37 is because another man stepped in and checked the rumour, but had that not happened she would have been taken away from him?38 — Rab can answer you: The same law, that where witnesses35 are available she is taken away from him and that where no witnesses are available she is not taken away, applies also to the case where no other man stepped in and checked the rumour, but this it is that was meant: 'Even if another man stepped in and checked the rumour it is not proper for him39 to marry her'.40
themselves, she must go away from him45 even if she had ever so many children!46 — Rab explains our Mishnah as dealing with the case where she has children and witnesses against her are available.
What, however, impels Rab to explain our Mishnah as dealing with a case where she has children and where witnesses against her are available, and to give as the reason why she is to be taken away, because witnesses are available, and [to imply that] if witnesses are not available she is not taken away; let him rather explain [our Mishnah as dealing with the case] where she has no children [and has to be taken away] even though no witnesses are available! Raba replied: Our Mishnah presented a difficulty to him. What point was there [he argued] for using the expression 'WAS TAKEN AWAY'?47 It should have been stated 'he parted from her';48 but any such expression as 'was taken away' implies 'by the Beth din' and the Beth din take away only where witnesses are available.49
If you prefer I may say that that Baraitha50 represents the view of Rabbi;51 for It was taught: When a pedlar52 leaves a house and the woman within is fastening her sinnar,53 since the thing is ugly she must, said Rabbi, go.54 If spittle is found55 on the upper part of the curtained bed, since the thing is ugly,56 she must, said Rabbi, go.54
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