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Babylonian Talmud: Tractate Yebamoth
that one in sleep cannot acquire his sister-in-law!1 But when accidental insertion occurred?2 Surely Rabbah stated: One who fell from a roof and his fall resulted in accidental insertion, is liable to pay an indemnity,3 for four things,4 and if the woman was his sister-in-law no kinyan is thereby constituted!5 — It is6 when, for instance, his intention was intercourse with his wife and7 his sister-in-law seized him and he cohabited with her.
How is one to understand, 'Both under compulsion', taught at the School of R. Hiyya? — When, for instance, his intention was intercourse with his wife and idolaters seized him,8 brought him and her9 into close contact and he cohabited with her.
Whence these words?10 — From what our Rabbis taught: Her husband's brother shall go in unto her11 is a commandment.12 Another interpretation: Her husband's brother shall go in unto her whether in error or in presumption, whether under compulsion or of his own free will.13 But, surely, deduction has already been made from this text that it14 is a commandment!15 — That it14 is a commandment16 may be inferred from And if the man like not17 which implies that if he likes he contracts the levirate marriage;16 so that the other text11 may serve the purpose of deducing,18 'whether in error or in presumption, whether under compulsion or of his own free will'.19
Another [Baraitha] taught: Her husband's brother shall go in unto her,11 in the natural way; and take her,11 even though in an unnatural way;20 and perform the duty of a husband's brother unto21 her,11 only the cohabitation consummates her marriage, but neither money22 nor deed22 can consummate her marriage; and perform the duty of a husband's brother unto her,11 even against her will.23
The Master said:24 'Another interpretation: Her husband's brother shall go in unto her whether in error etc.' But, surely, deduction has been made from this text11 that it25 must be in the natural way! — This may be deduced from To raise up unto his brother a name,17 [i.e.,] only where a name is raised up;26 so that the other text11 may be employed for the deduction,27 'whether in error or in presumption, whether under compulsion or of his own free will.'28
[To turn to] the main text. 'Rab Judah ruled that one in sleep cannot acquire his sister-in-law, for Scripture stated, Her husband's brother shall go in unto her,29 only when the cohabitation was intentional'.30 But, surely, it was taught: Whether he was awake or asleep! — Read: Whether she was awake or asleep. But, surely, it was taught: Whether he was awake or asleep; or whether she was awake or asleep! — This statement refers to one who was in a state of drowsiness. What state of drowsiness is hereby to be understood? R. Ashi replied: When a man is half asleep and half awake31 as, for instance, when he answers on being addressed but is unable to give any sensible reply, and when he is reminded of anything he can recall it.
[To turn to] the main text. Rabbah stated: One who fell from a roof, and his fall resulted in accidental insertion, is liable to pay an indemnity for four things, and if the woman was his sister-in-law no kinyan is thereby constituted. [He must pay her for] bodily injury, for pain inflicted, for enforced unemployment, and for medical expenses; but he is not liable to indemnify her for indignity, for a Master said, 'One is not liable to pay any indemnity for indignity unless it was intentionally caused'.32
Raba said: If a levir's intention was to shoot33 against a wall and he accidentally shot at his sister-in-law, no kinyan is thereby constituted;34 if he intended, however, to shoot at a beast and he accidentally shot at his sister-in-law, kinyan is thereby constituted, since some sort of intercourse had been intended.
WHETHER HE PASSED ONLY THE FIRST … STAGE. 'Ulla stated: Whence is it proved that the first stage of contact is pentateuchally forbidden?35 — It is said, And if a man shall lie with a menstruant woman,36 and shall uncover her nakedness, he hath made naked her fountain37 it is deduced from this text that the first stage of contact38 is pentateuchally forbidden. Thus the case of a menstruant has been arrived at; whence that of other forbidden unions?39 And were you to suggest that [their case] might be inferred from that of the menstruant, [it might be retorted] the menstruant is different since she causes the defilement of the man who cohabited with her.40 — Rather the deduction39 is made from 'a brother's wife' concerning whom it is written, And if a man shall take his brother's wife, she is a menstruant.41 Now is a brother's wife always menstruant?42 But [the meaning is] 'like a menstruant as with a menstruant the first stage constitutes the offence, so does the first stage constitute an offence with a brother's wife. But a brother's wife [it may be objected] is different since it is in his43 power to increase the number, for should he wish, he could go on betrothing as many as a thousand!44 — The deduction45 is rather made from the 'father's sister' and 'the mother's sister'. For it is written in Scriptures And thou shalt not uncover the nakedness of thy mother's sister, nor of thy father's sister, for he hath made naked his near kin.46 But it may be objected that a father's sister and a mother's sister come under a different category, since the prohibition in their case is natural.47 — If it45 cannot be deduced from one category48 then let it49 be deduced from the two categories.50
From which51 however shall deduction be made? Were it made from a brother's wife52 and a father's sister53 and a mother's sister,53 [it might be objected that] those stand in a different category, since the prohibition of these is due to relationship!54 — Deduction is rather made55 from the menstruant56 and a father's sister and a mother's sister. Those however [it may be objected] are in a different category since the prohibition is natural!57 — The deduction55 is rather made from the menstruant and a brother's wife; since no58 objection can be raised [against the two].59
R. Aha son of R. Ika demurred: A menstruant and a brother's wife are different,60 since marriage with them cannot be permitted during the lifetime of the man who caused their prohibition! Would you, then, apply [their restrictions] to a married woman who might be permitted to marry even during the lifetime of the man who caused her prohibition?61
Said R. Aha of Difti to Rabina: Are a menstruant and a brother's wife forbidden to marry only during the lifetime of the man who caused their prohibition but permitted after that?62 With a menstruant, surely,
the prohibition depends on the number of days,1 and with a brother's wife the All Merciful made her pro hibition dependent on the birth of children!2 — But the objection may be raised thus: A menstruant and a brother's wife are different,3 since the man who caused them to be forbidden cannot cause them to be permitted.4 Would you [then] apply their restrictions to a married woman whose permissibility is brought about5 by the man who caused her to be forbidden? But, said R. Johanan, or as some say, R. Huna son of R. Joshua, Scripture stated, For whosoever shall do any of these abominations, even the souls that do them shall be cut off,6 all forbidden unions were compared to the menstruant;7 as the first stage constitutes the offence with the menstruant so does the first stage constitute the offence with all the others.
What need, then, was there8 to mention the menstruant in the context of brother's wife?9 — For an inference like that of R. Huna. For R. Huna stated: Whence in the Torah may an allusion to the sister-in-law10 be traced? [You ask,] 'Whence'? Surely it is written in Scripture, Her husband's brother shall go in unto her!11 — [The query is] rather, whence the allusion that a sister-in-law is forbidden12 during the lifetime of her husband?13 But surely this is a logical inference: Since the All Merciful said that she14 is permitted to marry after the death of her husband, it may be inferred that during the lifetime of her husband13 she is forbidden! — [No] for is it not possible [to maintain] that after the death of her husband it15 is a commandment, and during the lifetime of her husband it15 is only optional? Or else, [though] indeed,16 only after the death of the husband,17 and not during the lifetime of her husband; yet being a negative commandment18 that is derived from a positive one19 it has only the force of a positive commandment!20 — Scripture stated: And if a man shall take his brother's wife, she is a menstruant.21 Now is a brother's wife always a menstruant?22 But the meaning is, 'like a menstruant': as a menstruant, although permitted afterwards,23 is forbidden under the penalty of kareth during the period of her prohibition, so also a brother's wife, though permitted afterwards,24 is forbidden under the penalty of kareth during the lifetime of her husband.
What need, however, was there to mention the first stage in connection with a father's sister or a mother's sister?25 — For an inference like that mentioned in the following question which Rabina addressed to Raba: What is the law if a man passed the first stage in pederasty? [You ask,] 'What is the law in pederasty'? Surely it is written, As with womankind!26 — But [the query is] what is the law when one passed the first stage with a beast? The other replied: No purpose is served by the text27 in [forbidding] the first stage in the case of a father's sister and a mother's sister, since in their case the prohibition is arrived at by the comparison of R. Jonah, apply that text to the first stage with a beast.
Observe! Intercourse with a beast is among the offences subject to the death penalties of a Beth din; why then was the first stage in relation to it enumerated among offences that are subject to the penalty of kareth?28 It should rather have been written among those which are subject to the death penalty of the Beth din,29 and thus one offence that is subject to the death penalty of a court would be inferred30 from a similar offence that is subject to the death penalty of a court! — Since the entire context31 was to serve the purpose of exposition,32 this thing33 was also included that it may serve the purpose of exposition.
What is the exposition?34 — It was taught, Thou shalt not uncover the nakedness of thy father's sister,35 whether she is paternal or maternal. You say, 'Whether she is paternal or maternal', perhaps it is not so, but only when she is paternal and not when maternal? — This36 is only logical: A man is subject to a penalty37 in this case and he is also subject to penalty37 in the case of his sister; as with his sister it is the same whether she is paternal or maternal, so here also38 it is the same whether she is paternal or maternal. But might it not be argued39 in this way: A man is subject to a penalty37 in this case and is also subject to a penalty37 in the case of his aunt;40 as his aunt is forbidden only when she is paternal41 but not when maternal,42 so here also38 when she is paternal and not when maternal! — Let us consider whom it more closely resembles. A prohibition which is natural43 ought to be inferred from a prohibition which is also natural44 but let no proof be adduced from an aunt whose prohibition is not natural.45 But might it not be argued46 thus: The relatives of a father47 should be inferred from the relatives of a father40 but let no proof be adduced from a sister who is one's own relative! Hence it was stated,48 Thou shalt not uncover the nakedness of thy father's sister,49 implying50 whether paternal or maternal, and Thou shalt not uncover the nakedness of thy mother's sister,51 implying also whether paternal or maternal.
What need was there to write it52 in respect of a father's sister and also in respect of a mother's sister?53 — R. Abbahu replied: Both are required. For had the All Merciful written it52 in respect of a father's sister [it might have been assumed to apply to her alone] because her relationship is legally recognized,54 but not to a mother's sister.55 And had the All Merciful written it56 in respect of a mother's sister [it might have been assumed to apply to her alone] because her relationship is certain, but not to her father's sister.57 [Hence both were] required.
As to one's aunt concerning whom the Tanna had no doubt that she must be paternal58 and not maternal, whence does he derive it? Raba replied: It is arrived at by a comparison between the words 'His uncle' [in two passages]: Here it is written, He hath uncovered his uncle's nakedness,59 and there it is written, Or his uncle or his uncle's son may redeem him,60 as there he must be paternal and not [necessarily] maternal61 so here also, he62 must be paternal63 and not [necessarily] maternal. And whence is it64 proved there? — Scripture stated, Of his family may redeem him,60 and only a father's family may be called the proper family, but the mother's family cannot be called the proper family.65
But surely we learned: If a man was told, 'Your wife is dead', and he married her paternal sister; [and when he was told] 'She66 also is dead', he married her maternal sister; 'She67 too is dead', and he married her paternal sister; 'She68 also is dead', and he married her maternal sister, he is permitted69 to live with the first,70 third71 and fifth72 who also exempt their rivals;73 but he is forbidden to live with the second and the fourth,74 and cohabitation with one of these does not exempt her rival. If, however, he cohabited with the second after the death of the first, he is permitted to live with the second75 and with the fourth76 who also exempt their rivals,73 but he is forbidden to live77 with the third and with the fifth.78
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