Babylonian Talmud: Tractate Yebamoth

Folio 8a

[The comparison] might well be justified where the deceased brother married [first]¹  and the surviving brother married [his brother's wife's sister] afterwards,²  for, in this case, since the prohibition of brother's wife was removed,³  that of wife's sister⁴  is also removed; but where the surviving brother had married [first] and the deceased brother had married subsequently, the prohibition of wife's sister was Surely in force first!⁵  Furthermore, even where the deceased had married [first], [the comparison] would be justified in the case where the deceased had married and died, and the surviving brother had married afterwards so that [the widow] was eligible in the interval;⁶  where, however, the deceased had married, and before he died his wife's sister was married by his surviving brother, [his widow] was never for a moment eligible for his brother! Does not 'Ulla admit that if the leper observed semen on the night preceding the eighth day⁷  of his purification he must not project his hand into the Sanctuary on account of his thumb⁸  because at the time he was eligible to bring the sacrifice [of the cleansed leper]⁹  he was not free from uncleanness?¹⁰

But [this is really the explanation]: If ''aleha' was at all needed, [it was for such a case as] where the deceased brother had married [first] and died, and the surviving brother married [the widow's sister] subsequently.¹¹

If you prefer I can say [that the reason¹²  is because] it¹³  might have been deduced by means of R. Jonah's analogy. For R. Jonah — others say, R. Huna son of R. Joshua — said: 'Scripture stated: For whosoever shall do any of these abominations shall be cut off,¹⁴  all forbidden relatives were compared to a brother's wife';¹⁵  [so in this case also it might have been said], as a brother's wife is permitted¹⁶  so also are all other forbidden relatives permitted; hence the All Merciful has written, ''aleha'.¹⁷

Said R. Aha of Difti¹⁸  to Rabina: Consider! All forbidden relatives¹⁹  might be compared to a brother's wife²⁰  and might equally be compared to a wife's sister,²¹  what reason do you see for comparing them to a wife's sister?²¹  Compare them rather to a brother's wife!²⁰  — If you wish I might say: When a comparison may be made for increasing as well as for decreasing restrictions, that for increasing restrictions must be preferred. If you prefer, however, I might say: In the former cases²²  there are two prohibitions in the one as well as in the other,²³  and a double prohibition may justly be inferred from a double prohibition; in the latter case, however,²⁴  only one prohibition is involved,²⁵  and a double prohibition may not be inferred from a single one.

Raba said: [That] a forbidden relative herself²⁶  [may not contract the levirate marriage] requires no Scriptural text to prove it, since no positive precept can supersede a prohibition which involves kareth; if a Scriptural text was at all needed it was for the purpose of forbidding a rival.

And in the case of a forbidden relative is no Scriptural text required [to prohibit her levirate marriage]? Surely it was taught, 'Thus we are in a position to know the law concerning herself'!²⁷  — On account of her rival.²⁸  Was it not taught, however, 'Now we know the law concerning themselves'?²⁹  — On account of their rivals.³⁰

Come and hear: Rabbi said: [Instead of] and take, [Scripture stated], and take her,³¹  [and instead of] and perform the duty of a husband's brother [Scripture stated], and perform the duty of a husband's brother unto her,³¹  in order to prohibit³²  [the levirate marriage of] forbidden relatives and their rivals!³³  — Read, 'To forbid [the levirate marriage of] the rivals of the forbidden relatives'. But two texts, surely, were mentioned;³⁴  was not one for the forbidden relative and the other for her rival? — No; both were for the rival, but one indicates prohibition³⁵  of a rival where the precept³⁵  is applicable, and the other indicates permission to marry the rival where the precept³⁵  is not applicable.³⁶  What is the reason? — [Because instead of] 'And perform the duty of a husband's brother' [Scripture stated] And perform the duty of a husband's brother UNTO HER, [which indicates that] only where levirate marriage is applicable is a rival forbidden³⁷  but where levirate marriage is not applicable³⁶  a rival is permitted.³⁷  R. Ashi said: [This³⁸  may] also be inferred from our Mishnah where it was stated, FIFTEEN [CATEGORIES OF] WOMEN EXEMPT THEIR RIVALS, but it was not stated, 'are exempt³⁹  and exempt [their rivals]'. This proves it.

In what respect does the case of a forbidden relative differ⁴⁰  that it should require no text?⁴¹  Obviously because no positive precept may supersede a prohibition which involves kareth. But then the case of a rival also should require no text,⁴¹  since no positive precept may supersede a prohibition which involves kareth!⁴²  — Said R. Aha b. Bebai Mar to Rabina, Thus it has been stated in the name of Raba: In the case of a rival also no Scriptural text⁴¹  was needed; if a text was needed at all

1. His wife thus becoming a forbidden relative to his brother as 'brother's wife'.
2. Thus adding to the one prohibition (v. previous note) the other of 'wife's sister'.
3. By the precept of the levirate marriage, owing to the childlessness of the deceased.
4. Since it was added subsequently.
5. And could not consequently be removed by the removal of a prohibition which took effect subsequent to it.
6. Between the death of her husband and the marriage of her sister by his surviving brother. This case would be analogous to that of the leper who was eligible to bring his sacrifices on the eighth day of his purification during the interval between the beginning of the day and the hour on that day he contracted a new uncleanness by his discharge.
7. The night is reckoned as the beginning of the day following it.
8. V. supra p. 31, n. 16.
9. The eighth day of his purification.
10. Owing to the discharge of the semen which occurred in the night. As a sacrifice must be brought in the day time only, there was not a single moment during which he was eligible to bring the sacrifices as being clean in all respects. The prohibition consequently remains in force. So also in the case of a wife's sister as regards the levirate marriage. The question, therefore, arises again, what need was there for the superfluous text of Lev. XVIII, 18. V. supra p. 30, n. 2.
11. So that there was an interval during which he was permitted to marry the widow. V. p. 33. n. 11.
12. Why the superfluous ''aleha' in Lev. XVIII, 18 was required.
13. The law that forbidden relatives may be married in the case of a levirate marriage.
14. Lev. XVIII, 29.
15. Having been grouped together in this text.
16. In the case of a levirate marriage.
17. Lev. XVIII, 18; to intimate that they are not permitted.
18. Dibtha, below the Tigris, S.W. of Babylon.
19. That were enumerated in our Mishnah.
20. And levirate marriage with all of them would thus be permitted.
21. With whom the levirate marriage is forbidden by the text ''aleha' (v. supra).
22. Lit., 'here', (a) in that of a wife's sister and (b) all the other forbidden relatives (other than a brother's wife).
23. Lit., 'and here two prohibitions', (a) forbidden relatives and (b) brother's wife.
24. Lit., 'but here,' a brother's wife who is not a consanguineous relative.
25. That of a brother's wife.
26. So BaH.
27. I.e., the forbidden relative, supra 3b.
28. Whose case had to be proved, it was necessary to begin with this introduction.
29. I.e., the forbidden relatives.
30. Cf. supra n. 3.
31. Deut. XXV, 5.
32. By the use of 'her' and 'unto her' which implies 'but no other'.
33. Which shews that a Scriptural text is required, even in the case of forbidden relatives themselves, to prove that levirate marriage is prohibited.
34. Lit., 'he took.'
35. Of the levirate marriage.
36. As, for instance, in the case of a rival of a forbidden relative who married a stranger, v. infra 13a.
37. To be married by the man to whom the relative herself is forbidden.
38. Raba's statement that the prohibition to contract levirate marriage with a forbidden relative is so obvious that no Scriptural text is required to prove it.
39. Which shews that the exemption of the forbidden relatives themselves from the levirate marriage (i.e., the prohibition ever to marry them) was taken in our Mishnah for granted.
40. From the case of her rival.
41. To prove its prohibition even in the case of the levirate marriage.
42. Kareth being the penalty in both cases.

it was for the purpose of permitting a rival where the precept¹  is not applicable. What is the reason?²  — Scripture stated, ''aleha',³  to indicate that only in the case of 'unto her'⁴  is she⁵  forbidden,⁶  where the other, however, may not, she is permitted.

Said Rami b. Hama to Raba: Might it not be suggested⁷  that the forbidden relative⁸  herself is permitted⁹  where the precept¹⁰  is not applicable? — Is not [such an argument contrary to the principle of inference] a minori ad majus? Being forbidden where the precept¹⁰  is applicable, would she be permitted where the precept is not applicable? — ['The case of a] rival', the first replied, 'could prove it, since she is forbidden⁹  where the precept¹⁰  is applicable, and is permitted⁹  where the precept¹⁰  is not applicable'. 'It is for your sake,' the other replied, 'that Scripture states, In her life-time,¹¹  so long as she¹²  lives'.¹³  But is not the expression,¹⁴  In her life-time,¹¹  required for the exclusion [of the prohibition of marriage] after her¹²  death?¹⁵  — This is deduced from the text, And a woman to her sister.¹¹  If [the deduction were only] from the text. 'And a woman to her sister',¹¹  it might have been said that if she¹⁶  was divorced the sister would be permitted, hence it was expressly stated, 'In her life-time.'¹¹  So long as she¹⁶  is alive, even though she has been divorced, [her sister must] not [be married]!¹⁷  — But, said R. Huna b. Tahlifa in the name of Raba, two Scriptural texts are available; it is written, Thou shalt not take a woman to her sister, to be a rival to her¹⁸  [implying two],¹⁹  and it is also written, To uncover her nakedness,²⁰  which implies that only one is forbidden; how then [are the two texts to be reconciled]? Where the precept²¹  is applicable both are forbidden;²²  where the precept²¹  is not applicable she²³  is forbidden but her rival is permitted. Might not the deduction be reversed: Where the precept²¹  is applicable she²³  is forbidden but her rival is permitted, but where the precept is not applicable both are forbidden!²²  — If so, ''aleha' should not have been stated.²⁴

Said R. Ashi to R. Kahana: Whence is it derived that the expression ''aleha'²⁵  indicates prohibition? Is it not possible that it implies permission, and that it is this that the All Merciful meant to imply: Thou shalt not take a woman to her sister, to be a rival to her,²⁵  neither herself nor her rival where 'unto her'²⁶  is not applicable,²⁷  but where 'unto her'²⁶  is applicable²⁸  both are permitted!²⁹  — If so, how could the 'uncovering of the nakedness' of one³⁰  be possible? If in the case where the precept³¹  is applicable, both are permitted;³²  and if where the precept is not applicable both are forbidden!³³

[Reverting to] the [above] text, Rabbi said: Instead of And take, Scripture stated, 'And take her' and instead of 'And perform the duty of a husband's brother', Scripture stated, 'And perform the duty of a husband's brother unto her', in order to prohibit [the levirate marriage of] forbidden relatives and their rivals. Are, then, rivals mentioned here at all? And, furthermore, the law of rivals has been derived from the expression To be her rival!³⁴  — The expression To be her rival is employed by Rabbi for R. Simeon's deduction.³⁵  Where,³⁶  however, is the rival mentioned?³⁷  — What he meant is this: If so,³⁸  Scripture should have stated, And take; why then did it state, 'And he shall take her'?³⁹  To indicate that wherever there are two to be taken,⁴⁰  he⁴¹  having the choice of marrying whichever he prefers⁴²  both are permitted,⁴³  but if not,⁴⁴  both are forbidden; And perform the duty of a husband's brother unto her,⁴⁵  indicates that where levirate marriage is applicable there is the rival forbidden, where, however, levirate marriage is not applicable the rival is permitted.

As to the Rabbis,⁴⁶  to what do they apply the verse 'And he shall take her'? — They require it for the deduction of R. Jose b. Hanina. For R. Jose b. Hanina said: 'And he shall take her'⁴⁵  teaches that he⁴⁷  may divorce her with a letter of divorce⁴⁸  and that he may remarry her;⁴⁹  And he shall perform the duty of a husband's brother unto her, even against her will.⁵⁰  And Rabbi?⁵¹  — The law of R. Jose b. Hanina is deduced from To a wife,⁴⁵  and that the marriage may take place against her will is deduced from Her husband's brother shall go in unto her.⁴⁵

What does Rabbi do with [the expression], ''aleha'? — He requires it [for another deduction], as we learnt: The Beth din⁵²  are under no obligation⁵³  unless [they ruled] concerning a prohibition the punishment for which is kareth, if the transgression was wilful, and a sin-offering if the transgression was unwitting; and so it is with the anointed High priest.

1. Of the levirate marriage.
2. I.e., how is the permissibility deduced?
3. Lev. XVIII, 18.
4. Lit., 'in the place of [H] with reference to the verse 'Her husband's brother shall go in unto her' (v. supra p. 8, n. 9) i.e., where the command of levirate marriage would otherwise apply.
5. The rival.
6. To be married, cf. supra p. 35, n. 12.
7. On the lines of the argument just advanced.
8. I.e., the wife's sister.
9. To be married.
10. Of the levirate marriage.
11. Lev. XVIII, 18.
12. One's wife.
13. Her sister must not be married. (Other forbidden relatives, as has been shewn supra, are deduced from one's wife's sister).
14. Lit., 'that'.
15. I.e., that the prohibition of a wife's sister which on the present assumption is limited to cases where the precept of levirate marriage is applicable, applies only during the lifetime of one's wife.
16. The wife.
17. But it can still be maintained that where no levirate marriage is applicable, there is no prohibition of marrying the wife's sister.
18. Lev. XVIII, 18.
19. I.e., that both the wife's sister and her rival are forbidden to be married. (This, as will be shewn infra, is deduced from the expression li-zeror.)
20. Lev. XVIII, 18, emphasis on her (sing.).
21. Of the levirate marriage.
22. To be married.
23. The forbidden relative herself.
24. Since even without this additional phrase the two contradictory texts would have been naturally reconciled by applying the former (prohibition of both) to a case where the precept of the levirate marriage is inapplicable, and the latter (permission of the rival) to a case where it is applicable. The addition of the phrase must consequently have been intended to impart a new law, viz. that a rival is forbidden, like the forbidden relative herself, where the precept of the levirate marriage is applicable.
25. Lev. XVIII, 18.
26. V. supra p. 8, n. 9.
27. I.e., where the law of the levirate marriage does not apply.
28. Where levirate marriage does apply.
29. The concluding part of the verse [H] meaning where he has to go 'unto her', the sister of his wife who is the widow of his brother, he may do so even in her (his wife's) life-time.
30. V. Lev. XVIII, 18, implying, as explained supra, the prohibition of one only.
31. Of the levirate marriage.
32. So that there are two, not only one.
33. And there is none.
34. Heb. li-zeror (Lev. XVIII, 18), supra 3b. How then could it be said to be derived from a different text?
35. V. infra 28b.
36. V. Emden a.l. Cur. edd. read 'here'.
37. In Deut. XXV, 5, the text cited by Rabbi. Clearly, it was not mentioned at all; how then could Rabbi derive from the text a law concerning a subject of which no mention was made?
38. That the text refers to the forbidden relative only and not to a rival.
39. Deut. XXV, 5.
40. Lit., 'takings', i.e., when the deceased childless brother is survived by two widows, and the levir has to decide which of them to marry.
41. The levir.
42. I.e., when neither of the two is a forbidden relative.
43. The emphasis on 'her' in And take her implies that there is a choice between two, and the phrase 'and take her' is taken to imply that the levir is in a position to choose whichever he pleases, since either of them must be capable of having the phrase 'and take her applied to her.
44. If one cannot be married by him on account of her being his forbidden relative.
45. Deut. XXV, 5.
46. Who made the deduction from li-zeror.
47. The levir.
48. After he married her; and she requires no halizah.
49. Though the precept of the levirate marriage has been fulfilled and she might have been assumed to be forbidden to him as a brother's wife. The text is interpreted as follows: And he takes her to him to wife, as soon as he has taken her, she is regarded henceforth in all respects as his wife, i.e., as if she had never been forbidden to him as a brother's wife.
50. Emphasis on 'unto her' (v. Tosaf).
51. Whence does he derive the law deduced by R. Jose b. Hanina?
52. Who are guilty of an erroneous ruling.
53. To bring the sacrifice prescribed in Lev. IV, 13ff.