Babylonian Talmud: Tractate Yebamoth

Folio 39a

And Abaye¹  maintains that a husband's rights²  have the same force as his wife's.³  Said Raba to him:⁴  If she came into possession of property while she was still With her husband, no one⁵  would dispute the view that his rights are superior to hers.⁶  Both [clauses of our Mishnah], however, [deal with property] which came into her possession while she was awaiting [the decision of] the levir; the first clause speaking of one to whom a ma'amar had not been addressed,⁷  and the final clause, of one to whom a ma'amar had been addressed.⁸  And Raba is of the opinion that a ma'amar, according to Beth Shammai, renders [the widow] definitely betrothed and doubtfully married. She is deemed to be definitely betrothed in respect of excluding her rival;⁹  and she is deemed to be doubtfully married in respect of taking a share in the property.¹⁰

A statement was made in the name of R. Eleazar in agreement with Raba and a statement was made in the name of R. Jose son of R. Hanina in agreement with Abaye. Could R. Eleazar, however, have made such a statement? Surely R. Eleazar said: A ma'amar, according to Beth Shammai, constitutes a kinyan in so far only as to keep out the rival!¹¹  — Reverse [the statements]. If you prefer I might say: There is really no need to reverse [them, for] R. Eleazar can tell you, 'What I said [amounted to this]: that a letter of divorce alone is not enough¹²  but that she requires also halizah; did I state, however, that the ma'amar constitutes no kinyan even in respect of taking a share in her property'!¹³

Said R. Papa: The inference from our Mishnah is in agreement with the opinion of Abaye,¹⁴  although 'IF SHE DIED' presents a difficulty.¹⁵  Seeing that it was stated PROPERTY THAT COMES IN AND GOES OUT WITH HER, what is meant by COMES IN and what by GOES OUT? Obviously,¹⁶  'COMES INTO the possession of her husband'¹⁷  and 'GOES OUT from the possession of her husband into the possession of her father'.¹⁸

'Although IF SHE DIED presents a difficulty': Why should they¹⁹  dispute [on the question of the property] itself, which can arise only in the event of the woman's death,²⁰  let them rather dispute on the question of the usufruct which arises even when the woman is still alive!²¹  The fact is that no further objection [can be raised].²²

WHERE HE MARRIED HER, SHE IS DEEMED etc. For what practical law [was this statement needed]? — R. Jose b. Hanina replied: To indicate that he may divorce her by means of a letter of divorce²³  and that he may remarry her.

'He may divorce her by means of a letter of divorce'; Is not this obvious?²⁴  — It might have been assumed that, since the All Merciful said²⁵  And perform the duty of a husband's brother unto her,²⁶  she retains the obligation of the first levirate relationship²⁷  and so may be set free²⁸  only through halizah but not through a letter of divorce, hence it was necessary to teach us [that the law is not so].

'He may remarry her'; Is not this obvious?²⁹  — It might have been assumed that since he³⁰  has already performed³¹  the commandment which the All Merciful has imposed upon him, she shall now be forbidden to him as the wife of his brother, hence it was necessary to teach us [that he may nevertheless remarry her]. Might it not be suggested that the law is so indeed?³²  — Scripture stated, And take her to him to wife;³³  as soon as he has taken her she is deemed to be his wife in every respect.

SAVE THAT HER KETHUBAH etc. What is the reason? — A wife has been given³⁴  to him³⁵  from heaven.³⁶  If, however, she is unable nothing more'. The inference from our Mishnah is undoubtedly in agreement with the view of Abaye, the only difficulty being the one mentioned. to obtain her kethubah from her first [husband], provision was made that she [is to receive it] from the second³⁷  in order that it may not be easy for him to divorce her.³⁸

MISHNAH. THE DUTY OF THE LEVIRATE MARRIAGE IS INCUMBENT UPON THE ELDEST [OF THE SURVIVING BROTHERS].³⁹  IF HE DECLINES, ALL THE OTHER BROTHERS ARE APPROACHED IN TURN.⁴⁰  IF THEY ALL DECLINE, THE ELDEST IS AGAIN APPROACHED AND HE IS TOLD, 'THE DUTY IS INCUMBENT UPON YOU; EITHER SUBMIT TO HALIZAH OR PERFORM THE LEVIRATE MARRIAGE.

IF HE⁴¹  WISHED TO SUSPEND ACTION⁴²  UNTIL A MINOR⁴³  BECOMES OF AGE, OR UNTIL THE ELDEST⁴³  RETURNS FROM A COUNTRY BEYOND THE SEA OR [UNTIL A BROTHER WHO WAS] DEAF⁴⁴  OR AN IMBECILE [SHOULD RECOVER],⁴⁵  HE IS NOT TO BE LISTENED TO, BUT IS TOLD, 'THE DUTY IS INCUMBENT UPON YOU; EITHER SUBMIT TO HALIZAH OR PERFORM THE LEVIRATE MARRIAGE.

GEMARA. It was stated: [On the relative importance of] the intercourse of a younger, and the halizah of an elder brother there is a difference of opinion between R. Johanan and R. Joshua b. Levi. One holds that the intercourse of the younger is preferable and the other holds that the halizah of the elder is preferable. 'One⁴⁶  holds that the intercourse of the younger is preferable,' because the commandment, surely, is to perform the levirate marriage;⁴⁷  and 'the other⁴⁶  holds that the halizah of the elder is preferable', because in the presence of an elder brother the intercourse of the younger is valueless.⁴⁸

We learned, IF HE DECLINED, ALL THE OTHER BROTHERS ARE APPROACHED IN TURN. Does not this mean that he declined to contract the levirate marriage but [was willing] to submit to the halizah? And yet it was stated, ALL THE OTHER BROTHERS ARE APPROACHED IN TURN, which proves⁴⁹  that the intercourse of a younger brother is preferred! — No; he wished neither to submit to halizah nor to perform the levirate marriage. Similarly, then, in the case of the other brothers, [the meaning is that] they declined both halizah and levirate marriage;⁵⁰  why, then, is THE ELDEST AGAIN APPROACHED with the object of bringing pressure upon him? Let pressure be brought to bear upon them!⁵¹  — As the duty⁵²  is incumbent upon him, pressure also must be used against him.

We learned, IF HE WISHED TO SUSPEND ACTION UNTIL A MINOR BECOMES OF AGE … HE IS NOT TO BE LISTENED TO. But if the intercourse of a minor is to be preferred, why IS HE NOT TO BE LISTENED TO? Let us rather wait, since on becoming of age he might contract the levirate marriage! — Following your view [it might similarly be objected], why [if he wished to wait] UNTIL THE ELDEST RETURNS FROM A COUNTRY BEYOND THE SEA … HE IS NOT TO BE LISTENED TO? Let us rather wait, since on his return he might contract the levirate marriage!⁵³  The fact is that the performance of a commandment must not be delayed.⁵⁴

1. Since he explains the latter clause to be dealing with property that came into the wife's possession while her husband was still alive.
2. To his wife's melog property.
3. Lit., 'his hand is like her hand'. The husband's rights, according to Beth Hillel, he maintains, are in no way superior to those of his wife. Hence, when he dies and the widow comes only under the levirate bond, the levir's rights, which cannot have the same force as those of a husband, are inevitably inferior to those of the widow. The property, therefore, must remain in the possession of herself or her heirs. Beth Shammai, on the other hand, maintain that a husband's rights have more force than those of his wife. When he dies and the levir steps in by virtue of the levirate bond, the latter's rights, though inferior to those of the husband, are of equal force with those of the widow whose rights also are inferior to those of her husband.
4. Abaye.
5. Lit., all the world', even Beth Hillel.
6. Lit., 'his hand is better than her hand', and the husband's heirs would consequently have been entitled to the property.
7. By the levir, before the property came into her possession. The levirate bond alone is not sufficient to effect a transfer of the property to the levir.
8. And after that the property came into her possession. As the ma'amar, according to Beth Shammai, is regarded as virtual marriage (v. supra 29a), the levir also is entitled to the property. Hence it must be divided. Beth Hillel, on the other hand, not regarding a ma'amar as marriage, deny the levir all rights upon the property which is, therefore, to remain with the heirs of the woman.
9. Her sister who does not cause her to be forbidden to the levir as 'his zekukah's sister'. V. supra 29a.
10. The levir is not entitled to all the property as if he had actually married the widow, but only to a share of it.
11. Supra 29a, Ned. 74a.
12. When a ma'amar had been addressed to the widow.
13. Certainly not. Consequently his statement in agreement with the view of Raba may be perfectly authentic.
14. That the final clause deals with property that came into the woman's possession while she was still living with her husband.
15. This is explained infra.
16. Lit., 'not?'
17. At the time they came into her possession.
18. When she dies. The property must consequently have come into her possession when she was still living with her husband, as Abaye maintains.
19. Beth Shammai and Beth Hillel.
20. Lit., 'and after death'.
21. Lit., 'in her life and concerning the fruit'.
22. Lit., 'and
23. And no halizah is required.
24. Since with the levirate marriage she assumes the status of a married woman.
25. So MS.M. Cur. edd., add, 'It is written, And take her to wife'.
26. Deut. XXV, 5; although it was already stated in the same verse, and take her to wife.
27. So MS.M., cur. edd., 'the levirate relationship of the first'.
28. Lit., 'yes'.
29. Cf. supra n. 2.
30. The levir.
31. By his first marriage.
32. That a brother's widow with whom levirate marriage was performed still requires halizah and may not be remarried by the levir after he had divorced her.
33. Deut. XXV, 5; where only the latter part of the verse, And perform the duty of a husband's brother unto her would have been sufficient. V. supra 8a.
34. Lit., 'they caused him to acquire'.
35. The levir.
36. He has neither chosen her nor has he undertaken any obligations towards her. She was imposed upon him by the divine law of the levirate marriage. The claim of her kethubah must, therefore, be a charge upon the estate of her first husband whose choice she had been.
37. The levir.
38. Lit., 'that she may not be easy in his eyes to cause her to go out'.
39. V. supra 24a.
40. In the descending order of age.
41. The eldest brother present on the spot. (Rashi).
42. Lit., 'he hung' or 'suspended'. [Aliter. He referred (the action) to; v. n. 9].
43. Brother.
44. [H] in Rabbinic literature usually signifies one who is deaf from birth. Hence 'a deaf-mute'.
45. [Tosaf.: He referred her to a deaf brother etc.].
46. Lit., 'he who'.
47. Halizah being merely a substitute for it.
48. Since the duty is, in the first instance, incumbent upon the elder.
49. Since the younger brothers are asked to contract the levirate marriage when the elder expressed his willingness to submit to halizah.
50. Since the same expression of unwillingness is used.
51. If the eldest had only refused marriage but was willing to submit to halizah, as has first been assumed, one could explain our Mishnah to mean that 'THE ELDEST IS AGAIN APPROACHED with a view to halizah'; he being the eldest, halizah also is first offered to him. If, however, he refused both halizah and marriage, as has now been explained, and the object of approaching him is coercion, why should the Beth din be troubled to summon him again in order to coerce him when any of the brothers who happens to be near at hand might just as well be coerced?
52. Of the levirate marriage. V. our Mishnah.
53. So marginal gloss. Cur. edd., 'and submits to halizah'.
54. And this is the only reason why his request is not granted.

Some say: As regards intercourse all agree that the intercourse of a younger brother is preferred.¹  They only differ on the halizah of a younger brother. And the statement²  ran thus: [On the relative importance of] the halizah of a younger, and the halizah of an elder brother there is a difference of opinion between R. Johanan and R. Joshua b. Levi. One holds that the halizah of the elder is preferable, and the other holds that both are of equal importance. 'One³  holds that the halizah of the elder is preferable'⁴  because the commandment surely, is incumbent upon the elder. And the other [maintains that] the statement, 'the commandment is incumbent upon the elder', [was made] in respect of the levirate marriage; in respect of the halizah, however, they are both of equal importance.

We learned, IF THEY ALSO DECLINE, THE ELDEST IS AGAIN APPROACHED. Does not this mean that they declined to contract the levirate marriage but [were willing] to submit to halizah? And yet it was stated, THE ELDEST IS AGAIN APPROACHED, which proves that the halizah of the elder is preferred! — No; they declined the halizah as well as the levirate marriage.

Similarly, in the case of the eldest brother, he declined the halizah as well as the levirate marriage;⁵  why, then, IS THE ELDEST AGAIN APPROACHED with the object of coercing him? Let coercion be used against them!⁶  — As the duty⁷  is incumbent upon him, coercion also must be used against him.

Come and hear: IF HE WISHES TO SUSPEND ACTION … UNTIL THE ELDEST RETURNS FROM A COUNTRY BEYOND THE SEA … HE IS NOT TO BE LISTENED TO. But if the halizah of the eldest is preferable why IS HE NOT TO BE LISTENED TO? Let us rather wait, since it is possible that when he returns he will submit to halizah! — Following your view [it might similarly be objected], why [if he wishes to postpone action] UNTIL A MINOR BECOMES OF AGE … HE IS NOT TO BE LISTENED TO? Let us rather wait, since, on becoming of age, he might contract the levirate marriage!⁸  The fact is that the performance of a commandment must not be delayed.⁹

We learned elsewhere: At first, when the object was the fulfilment¹⁰  of the commandment, the precept of the levirate marriage was preferable to that of halizah; now, however, when the object is not the fulfilment of the commandment, the precept of halizah, it was laid down, is preferable to that of the levirate marriage.¹¹  Rab said: But no coercion¹²  may be used.¹³

When they¹⁴  came before Rab he addressed them thus: 'If you¹⁵  wish, submit to halizah; if you prefer, contract the levirate marriage; the All Merciful has given you the choice:¹⁶  And if the man like not to take his brother's wife,¹⁷  implying, if he likes he may, whenever he wishes, submit to halizah or, if he prefers, contract the levirate marriage.'

Rab Judah also is of the opinion that no coercion may be applied; since Rab Judah has ordained [the following formula] for a deed of halizah: '[We certify] that So-and-so daughter of So-and-so brought before us into court her brother-in-law So-and-so, and we have ascertained him to be the paternal brother of the deceased. We told him, "If you wish to contract the levirate marriage, contract it, and if not, incline¹⁸  towards her your right foot". He inclined¹⁹  towards her his right foot and she removed his shoe from off his foot and spat out before him, a spittle which has been seen by the court upon the ground'.

R. Hiyya b. Iwya in the name of Rab Judah concluded²⁰  as follows: 'And we read before them [the relevant passage] that is written in the Book of the Law of Moses'.

'We ascertained him'. On this, R. Aha and Rabina are in dispute. One says: Through [qualified] witnesses. The other says: Even a relative and even a woman²¹  [may tender the evidence].

The law is that it²²  is a mere intimation, and that even a relative and even a woman [may tender the evidence].

'At first, when the object was the fulfilment of the commandment, the precept of the levirate marriage was preferable to that of halizah; now, however, when the object is not the fulfilment of the commandment, the precept of halizah, it was laid down, is preferable to that of the levirate marriage'. Said Rami b. Hama in the name of R. Isaac: It was re-enacted that the precept of the levirate marriage is preferable to that of halizah.

Said R. Nahman b. Isaac to him: Have the generations improved in their morals? — At first they held the opinion of Abba Saul, and finally they adopted that of the Rabbis. For it was taught: Abba Saul said, 'If a levir marries his sister-in-law on account of her beauty, or in order to gratify his sexual desires or with any other ulterior motive, it is as if he has infringed the law of incest; and I am even inclined to think that the child [of such a union] is a bastard'. But the Sages said, 'Her husband's brother shall go in unto her,²³  whatever the motive'.²⁴

Who is the Tanna of the following statement which our Rabbis taught: 'Her husband's brother shall go in unto her,²³  is a commandment; for originally²⁵  she stood in relation to him in the status of permissibility, then²⁶  she was forbidden to him, and then again²⁷  permitted; consequently it might have been assumed that she reverts to her original status of permissibility, hence it was specifically stated, Her husband's brother shall go in unto her,²³  it is a commandment'. — Who, now, is the Tanna? — R. Isaac b. Abdimi replied. It is [the statement of] Abba Saul, and it is this that he meant: Her husband's brother shall go in unto her,²³  is a commandment; for originally²⁵  she stood in relation to him in the status of permissibility; he could have married her, if he wished, on account of her beauty and he could have married her, if he wished, in order to gratify his sexual desires; then²⁸  she was forbidden to him, and then again²⁹  permitted; consequently it might have been assumed that she reverts to her original status of permissibility,³⁰  hence it Was specifically stated, Her husband's brother shall go in unto her³¹  only with the intention of performing the commandment.³²

Raba said: You may even say [that the authorship³³  is that of] the Rabbis,³⁴  and it is this that was meant: Her husband's brother shall go in unto her,³¹  is a commandment; for originally³⁵  she was in the status of permissibility; he could have married her if he wished and, if he preferred, he could have abstained from marrying her; then²⁸  she was forbidden to him, and then again²⁹  permitted; consequently it might have been assumed that she was to revert to her original status of permissibility, so that, if he wished, he might marry her and, if he preferred, he could abstain from marrying her. [You say,] 'If he preferred he could abstain from marrying her'? Surely she is tied to him;³⁶  can she be set free by no act whatever! — Say rather: [It might have been assumed that] if he wished he might marry her, and, if he preferred, he might submit to halizah, hence it was specifically stated her husband's brother shall go in unto her,³¹  it is a commandment.³⁷

Read, then,³⁸  the first clause: 'It shall be eaten without leaven in a holy place,³⁹  is a commandment;

1. To the halizah of an elder brother.
2. Of the dispute supra 39a.
3. Lit., 'he who'.
4. To the halizah of a younger one.
5. V. p. 250, n. 3. supra.
6. V. p. 250, n. 4.
7. Of the levirate marriage. V. our Mishnah.
8. Cur. edd. enclose the following in parentheses. 'Or also he might come and contract with her the levirate marriage'.
9. V. supra p. 250, n. 7.
10. Lit., 'they had the intention for the name etc.'
11. Bek. 13a. Keth. 64a.
12. To perform or to submit to halizah.
13. If both parties consent to contract the levirate marriage.
14. Levirate cases.
15. Speaking to the levir.
16. Lit., 'hung upon you'.
17. Deut. XXV, 7.
18. Af. of [H] 'to halt' (Heb. [H]). hence 'incline'. Others: Ethp. of [H] = [H] and [H] (cf. Targ. Ruth IV, 7, 8; Lam. IV, 3)' hence 'allow … to be removed or untied'. 'Turn thy right foot towards her' (Jast.). 'Allow the shoe of your right foot to be removed by her' (Aruk.).
19. Cf. supra n. 11.
20. The formula of the certificate of halizah.
21. Who are, as a rule, ineligible as witnesses.
22. The insertion of 'we ascertained him'.
23. Deut. XXV, 5.
24. Tosef. Yeb. VI,
25. Before she married his brother.
26. When she married his brother.
27. When his brother died childless.
28. When she married his brother.
29. When his brother died childless.
30. So that he may marry her with any ulterior motive.
31. Deut. XXV, 5.
32. [H] lit., 'for the commandment', i.e., the fulfilment of the Scriptural text.
33. Of the above cited teaching.
34. The Sages who oppose Abba Saul, supra.
35. Before she married his brother.
36. By the levirate bond.
37. [H], a mere commandment, no intention at the performance thereof being particularly essential (cf. n. 5). The duty to contract the levirate marriage far exceeds that of halizah which is only a substitute to be resorted to as a last expedient.
38. If the interpretation of R. Isaac b. Abdimi of the final clause of the Baraitha cited is tenable.
39. Lev. VI, 9, dealing with the laws of the meal-offering and the consumption thereof by the priest who performed the rite.