Babylonian Talmud: Tractate Yebamoth

Folio 53a

that a levirate bond does exist¹  but the halizah had previously removed that [levirate] bond.²  The Rabbis, however, hold that no levirate bond exists.³  If, then, he had said to her at first,⁴  'Be thou betrothed unto me by the bond of the levirate' would not his word have been valid?⁵  Consequently it is now also valid.

R. Sherabia said: Had a proper halizah been performed all would agree that if he said to her,⁶  'Be thou betrothed unto me by the bond of the levirate', there is no validity in his betrothal. Here, however, the dispute relates to a halizah of an impaired character. One Master⁷  holds that a halizah of an impaired character provides [all the necessary] exemption,²  and the Masters hold that a halizah of an impaired character provides no exemption.⁸

R. Ashi said: [No;] All agree that a halizah of an impaired character provides no exemption. Here,⁹  however, the dispute centres round the question whether a condition¹⁰  may affect the validity of halizah.¹¹  The Masters hold that a condition¹¹  does affect the validity of a halizah¹²  and the Master¹³  holds that no condition may affect the validity of a halizah.¹⁴

Rabina said: [No;] All agree that a condition does affect a halizah. Here,⁹  however, the dispute is dependent on the question of the doubled condition.¹⁵  The Master¹³  holds that a doubled condition is essential¹⁶  and the Masters hold the opinion that a doubled condition is unnecessary.¹⁷

IF THE LEVIR SUBMITTED TO HALIZAH AND THEN ADDRESSED TO HER A MA'AMAR, GAVE HER A LETTER OF DIVORCE, OR COHABITED WITH HER etc. It should also have been stated, 'No act is valid after cohabitation'!¹⁸  — Both Abaye and Raba replied: Read,¹⁹  'NO ACT IS VALID AFTER cohabitation'. But our Tanna?²⁰  — [The statement regarding] the permissibility of the sister-in-law to marry anyone²¹  was preferred by him.²²

THE LAW IS THE SAME WHETHER THERE IS ONE SISTER-IN LAW … OR TWO SISTERS-IN-LAW. Our Mishnah²³  is not in agreement with the ruling of Ben 'Azzai. For it was taught: Ben 'Azzai stated: A ma'amar is valid after another ma'amar where it concerns two levirs²⁴  and one sister-in-law,²⁵  but no ma'amar is valid after a ma'amar where it concerns two sisters-in-law and one levir.²⁶  HOW? … A MA'AMAR TO THE ONE etc. May it be suggested that this²⁷  provides support to a ruling of Samuel, Samuel having stated that if the levir had participated in the halizah with her to whom he addressed a ma'amar, her rival was not thereby exempt; and an objection to the ruling of R. Joseph?²⁸  — Does it state: He may participate in the halizah? What it states is 'had participated', implying a fait accompli.²⁹

A LETTER OF DIVORCE TO THE ONE AS WELL AS TO THE OTHER etc. May it be suggested that this³⁰  provides support to Rabbah son of R. Huna. For Rabbah son of R. Huna stated, 'A halizah of an impaired character must go the round of all the brothers'?³¹  — By IT IS NECESSARY FOR BOTH, widows generally³²  were meant.³³

IF HE GAVE A LETTER OF DIVORCE TO ONE AND SUBMITTED TO HALIZAH FROM THE OTHER. May it be suggested that this³⁴  provides support to the ruling of Samuel³⁵  and presents an objection against the ruling of R. Joseph?³⁶  — Does it state: He may participate in the halizah? What it states is 'had participated', implying a fait accompli.³⁷

IF THE LEVIR SUBMITTED TO HALIZAH FROM THE ONE AND FROM THE OTHER, OR SUBMITTED TO HALIZAH etc. It should also have been stated, 'No act is valid after cohabitation'!³⁸  Both Abaye and Raba replied: Read,³⁹  'no act is valid after cohabitation'.

But our Tanna?⁴⁰  — [The statement on] the permissibility of the sister-in-law marrying anyone⁴¹  was preferred by him.⁴²

THERE IS NO DIFFERENCE IN THE LAW WHETHER THERE WAS ONE LEVIR TO TWO SISTERS-IN-LAW etc. According to R. Johanan who ruled that the whole house⁴³  stands under the prohibition of a negative precept,⁴⁴  it is intelligible why it was necessary to inform us⁴⁵  that betrothal with those whose intercourse involves the penalties of a negative precept is invalid;⁴⁶  according to Resh Lakish, however, who ruled that all the house⁴⁷  is subject to the penalty of kareth,⁴⁸  was there any need to inform us that betrothal with those whose intercourse involves kareth is invalid?⁴⁹  — Resh Lakish can answer you: And even according to your conception was it necessary to tell us in the final clause, which speaks of the case where the LEVIR COHABITED WITH HER AND THEN ADDRESSED TO HER A MA'AMAR, that there was no validity in a betrothal with a married woman?⁴⁹  But the fact is that as he taught concerning the permissibility⁵⁰  of one levir and one sister-in-law,⁵¹  he also taught concerning two sisters-in-law and one levir. And since he taught concerning two sisters-in-law and one levir, he also taught concerning two levirs and one sister-in-law.

1. I.e., the validity of such a formula elsewhere is absolutely dependent on the existence of the levirate bond.
2. Hence the invalidity of the formula that followed it.
3. The levirate bond does not in any way add to, or subtract from the force of the formula.
4. Before the performance of the halizah.
5. V. supra note 4.
6. After the halizah, for instance, which has been performed after a divorce.
7. Rabbi.
8. The original bond remains and the halizah is altogether disregarded. Hence the validity of the formula after an improper halizah.
9. The dispute between Rabbi and the Rabbis.
10. Made by the levir. If, e.g., he submitted to the halizah on the understanding that the widow would give him a certain sum of money or render him some service.
11. Where the condition had not been fulfilled.
12. As the halizah is invalid (v. supra n. 3) the original bond remains and the formula is consequently valid.
13. Rabbi.
14. Even if the condition was not fulfilled the halizah remains valid. Hence there could be no force in the formula that follows it.
15. [H], a stipulation and its alternative. The classical example is the condition made by Moses with the children of Gad and Reuben: If they passed the Jordan, the land of Gilead would be given to them; if they did not pass the Jordan, they would take their share in the land of Canaan. V. Num. XXXII, 29f.
16. As the levir's condition was not a 'doubled one' it has no validity. The halizah is consequently valid and the formula following it is invalid.
17. The condition being valid, the halizah depending on it, where it is unfulfilled, is invalid. Hence the validity of the levirate formula.
18. Since that section of our Mishnah deals not only with (a) certain acts after halizah but also with (b) certain acts after cohabitation.
19. Var. lec., 'Both Abaye and Raba read'. The reading that follows actually occurs in Tosef. Yeb. VII. Cf. [H]
20. Why did he omit the mention of cohabitation?
21. I.e., the permissibility though halizah.
22. Hence halizah only was mentioned. After cohabitation the sister in-law is permitted to one man (the levir) only. As the Tanna preferred the case of halizah to that of cohabitation and as the invalidity of any acts after cohabitation may be inferred from the invalidity of those after halizah, the Tanna did not consider it necessary to mention cohabitation at all.
23. Which admits the validity of a ma'amar after another ma'amar in the case of two sisters-in-law and one levir,
24. Each one of whom in turn addressed a ma'amar to the sister-in-law.
25. Each levir being entitled to a ma'amar. V. supra 51a.
26. The second ma'amar, contrary to the ruling of our Mishnah, has no validity because by the first ma'amar, in the opinion of Ben 'Azzai, the levir had exhausted all his rights.
27. The statement, THE ONE REQUIRES A LETTER OF DIVORCE AND THE OTHER, but not the first to whom the ma'amar had been addressed, MUST PERFORM THE HALIZAH because, obviously, halizah with the first does not exempt the second, her rival.
28. 'Who stated, supra 44a, 'A man should not pour the water out of his cistern while others may require it', i.e., a levir shall not cause the disqualification, by halizah, of the widow who is not otherwise disqualified, when the halizah could well be performed by the other widow who was in any case disqualified. In our Mishnah, contrary to R. Joseph's ruling, halizah is performed by the second who would in consequence be disqualified from marrying a priest, and not by the first who is already disqualified by the divorce she had been given.
29. The proper procedure, however, might still be for the halizah to be performed by the widow to whom the ma'amar had been addressed.
30. The statement in our Mishnah that HALIZAH IS NECESSARY FOR BOTH, which seems to imply that each widow must perform halizah where there is only one levir and, since the Mishnah also stated THAT THERE IS NO DIFFERENCE IN THE LAW WHETHER THERE WAS ONE LEVIR AND TWO SISTERS-IN-LAW OR TWO LEVIRS AND ONE SISTER-IN-LAW, that where there are two levirs and one sister-in-law halizah must be performed with both levirs.
31. Supra 26b, 51a.
32. In similar circumstances,
33. But in every case the halizah is performed by one widow only and the other is thereby exempt. V. supra p. 330, n. 5.
34. The ruling that halizah is performed by the second widow and not by the first to whom the divorce had been given.
35. Who stated, supra 27a, that if the levir had participated in the halizah with her whom he had divorced, her rival is not thereby exempt. Consequently, as was stated in our Mishnah, the halizah is to be performed by the second.
36. V. p. 350, n, 6.
37. Cf. supra p. 350, n. 7.
38. Cf. p. 350, n. 6.
39. Cf. p. 349, n. 11.
40. Cf. p. 349. n. 12.
41. Cf. p. 349, n. 13.
42. Cf. p. 349, n. 14.
43. I.e., all the brothers of the deceased including the levir who submitted to the halizah.
44. Both the levir and the other brothers (v. supra n. 13) are forbidden by the negative precept 'that doth not build' to marry the halizah or her rival. V. supra 10b.
45. By the statement that a ma'amar is invalid after halizah.
46. Had not this been indicated it might have been assumed that a betrothal of a woman forbidden only by a mere negative precept is legally valid.
47. V. supra p. 351, n. 13.
48. If any one of the brothers married the rival of the haluzah, or if any of them (other than the levir who participated in the halizah) married the haluzah herself; the prohibition in all these cases being that of marriage with 'a brother's wife' which is punishable by kareth. The prohibition of the levir who participated in the halizah to marry the haluzah herself is, of course, even according to Resh Lakish, only that of a negative precept (v. supra 10b).
49. Such a ruling is surely obvious!
50. I.e., that there is no validity in the betrothal.
51. A ruling which was necessary, even according to Resh Lakish, since he also, like R. Johanan, subjects the marriage between the levir who submitted to the halizah and the haluzah to the penalty of a negative precept only (v. supra n. 3).

IF THE LEVIR SUBMITTED TO HALIZAH AND THEN ADDRESSED TO HER A MA'AMAR [and] GAVE etc. One can well understand why it was necessary [to lay down a rule¹  where] THE LEVIR SUBMITTED TO HALIZAH AND THEN ADDRESSED TO HER A MA'AMAR; since it might have been assumed that provision was to be made²  for a ma'amar that followed halizah³  as a preventive measure against a ma'amar that preceded halizah,⁴  it was consequently necessary to tell us that no such preventive measure was to be made. What need, however, was there for the ruling⁵  where THE LEVIR SUBMITTED TO HALIZAH AND THEN GAVE HER A LETTER OF DIVORCE?⁶  — Read, then, according to your own view, the final clause, IF HE COHABITED WITH HER AND THEN ADDRESSED TO HER A MA' AMAR or if he cohabited with her and then GAVE HER A LETTER OF DIVORCE. One can well understand [it might be argued here also] why it was necessary [to lay down a ruling⁷  where] the levir cohabited with her and then GAVE HER A LETTER OF DIVORCE; since it might have been assumed that provision was to be made for a divorce that followed cohabitation⁸  as a preventive measure against a divorce that preceded cohabitation,⁹  it was consequently necessary to tell us that no such preventive measure was required. But what need was there [for the ruling¹⁰  where] HE COHABITED WITH HER AND THEN ADDRESSED TO HER A MA'AMAR?¹¹  But [the fact is that] as he taught, IF THE LEVIR SUBMITTED TO HALIZAH AND THEN ADDRESSED TO HER A MA'AMAR,¹²  he also taught: IF HE COHABITED WITH HER AND THEN ADDRESSED TO HER A MA'AMAR. And since he desired to teach the rule where 'he cohabited with her and then GAVE HER A LETTER OF DIVORCE' he also taught, IF THE LEVIR SUBMITTED TO HALIZAH and then GAVE HER A LETTER OF DIVORCE.

IF IT TOOK PLACE¹³  etc. Our Mishnah cannot be reconciled with the opinion of the following Tanna: For it was taught: Abba Jose b. Johanan of Jerusalem reported in the name of R. Meir, 'Alike in the case of cohabitation or of halizah, [if it took place] first,¹⁴  no act that follows has any validity; but if it occurred in the middle¹⁴  or at the end,¹⁴  something valid still remains'. On this question, in fact, three different views have been expressed. The first Tanna is of the opinion that in the case of cohabitation, where a preventive measure is required,¹⁵  a preventive measure was made,¹⁶  but in the case of halizah where no preventive measure is called for¹⁷  no preventive measure was made. R. Nehemiah, on the other hand, is of the opinion that in the case of cohabitation also no preventive measure is called for.¹⁸  And as to your possible objection that provision should be made where cohabitation followed a letter of divorce as a preventive measure against cohabitation that followed a halizah,¹⁹  [it may be replied that] as halizah is a Pentateuchal law it is well known.²⁰  And as to your objection that provision should be made where cohabitation followed a ma'amar as a preventive measure against cohabitation that followed another cohabitation, [it may also be replied that] as kinyan by cohabitation is a Pentateuchal law it is certainly well known.²⁰  And Abba Jose b. Hanan,²¹  again, holds the same view as the Rabbis²²  who ordained a preventive measure in the case of cohabitation,²³  and he made similar provision in the case of halizah as a preventive measure against cohabitation.

CHAPTER VI

MISHNAH. IF A MAN COHABITED WITH HIS DECEASED BROTHER'S WIFE,²⁴  WHETHER IN ERROR²⁵  OR IN PRESUMPTION,²⁶  WHETHER UNDER COMPULSION OR OF HIS OWN FREE WILL, EVEN IF HE ACTED IN ERROR AND SHE IN PRESUMPTION, OR HE IN PRESUMPTION AND SHE IN ERROR, OR HE UNDER COMPULSION AND SHE NOT UNDER COMPULSION, OR SHE UNDER COMPULSION AND HE NOT UNDER COMPULSION, WHETHER HE PASSED ONLY THE FIRST, OR ALSO THE FINAL STAGE OF CONTACT, HE CONSTITUTES THEREBY A KINYAN,²⁷  IRRESPECTIVE OF THE NATURE²⁸  OF THE INTERCOURSE.²⁹

SIMILARLY, IF A MAN HAD INTERCOURSE³⁰  WITH ANY OF THE FORBIDDEN RELATIVES ENUMERATED IN THE TORAH, OR WITH ANY OF THOSE WHO ARE INELIGIBLE TO MARRY HIM AS, FOR INSTANCE, A WIDOW WITH A HIGH PRIEST, A DIVORCED WOMAN OR A HALUZAH WITH A COMMON PRIEST, A BASTARD OR A NETHINAH³¹  WITH AN ISRAELITE OR THE DAUGHTER OF AN ISRAELITE WITH A BASTARD OR A NATHIN, HE HAS THEREBY RENDERED HER INELIGIBLE,³²  IRRESPECTIVE OF THE NATURE OF THE INTERCOURSE.²⁹

GEMARA. What is the purport of EVEN? — [The formula of] 'It is not necessary' is thereby to be understood: It is not necessary [to state that a kinyan is constituted where] he acted in error³³  and her intention was the performance of the commandment³⁴  or where he acted in presumption and her intention was the performance of the commandment,³⁵  but even if he acted in error and she in presumption,³⁶  or³⁷  he in presumption and she in error, so that the intention of neither of them was the fulfilment of the commandment,³⁸  a kinyan is nevertheless effected.

R. Hiyya taught: Even if both acted in error, both in presumption, or both under compulsion.³⁹  How is one to understand the action UNDER COMPULSION in our Mishnah? If it be suggested [that] idolaters compelled him to cohabit with her, surely [it may be pointed out] Raba stated: There can be no compulsion in sexual intercourse since erection depends entirely on the will! But when he slept?⁴⁰  Surely Rab Judah ruled

1. That there is no validity in the ma'amar.
2. Even according to R. Akiba.
3. By giving to the ma'amar the force of a valid betrothal and by subjecting the sister-in-law, in consequence, to the necessity of a divorce.
4. Were the former to be regarded as invalid, the latter also might erroneously be so regarded.
5. That there is no validity in the divorce where there is only one levir and one sister-in-law. (V. supra p. 331, n. 3).
6. What possible consequences could ensue from the presumed validity of such a divorce that are not already in force as a result of the halizah? The halizah, like a divorce, causes the prohibition of the widow to the levir, and her relatives also are thereby forbidden as the relatives of his haluzah'!
7. That nothing of the levirate bond remains after cohabitation and that, consequently. the divorce alone is a valid act and there is no need for halizah also.
8. By requiring halizah in addition to the divorce.
9. Were halizah to be dispensed with in the former case it might erroneously be presumed that as a letter of divorce alone is valid enough in this case it is also valid in the latter case, and thus divorce might be allowed to supersede the halizah of any sister-in-law.
10. That there is no validity in the ma'amar.
11. Of what consequence could the ma'amar be after cohabitation whereby the woman had become the levir's proper wife?
12. Which was certainly necessary, as has just been explained.
13. Lit., 'in the time when it is'.
14. For an explanation of this term v. notes on our Mishnah supra.
15. Since something of the levirate bond remains after an improper cohabitation.
16. Hence he ruled that only when cohabitation had taken place at the beginning (but not when in the middle or at the end) does the levirate bond completely disappear.
17. Because in his opinion even an improper halizah is valid in all respects.
18. Maintaining as he does that nothing of validity remains either after halizah or after cohabitation.
19. Were the former to be regarded as valid the latter also might be so regarded.
20. And no one would draw comparisons between the two.
21. Abbreviation of 'Johanan'.
22. In our Mishnah.
23. V. supra 50b.
24. The widow of his deceased childless brother.
25. Not knowing that she was his sister-in-law.
26. To gratify his passions and with no intention of fulfilling the precept of the levirate marriage.
27. Lit., 'he acquires her'. The widow is deemed to be his legal wife. He is entitled to the heirship of her estate; and she can be released only by a letter of divorce.
28. Lit., 'and he made no distinction'.
29. Whether it was natural or unnatural.
30. In any of the circumstances mentioned.
31. Fem. of nathin, v. Glos.
32. To marry a priest, and to eat terumah even if she had previously been eligible to eat of it. This, of course, does not apply to the bastard and nethinah who are from birth ineligible either to marry a priest or to eat terumah. Their inclusion among the others merely serves the purpose of indicating that in their case also the penalty for illicit intercourse is imposed whether it was ONLY IN THE FIRST, OR ALSO IN THE FINAL STAGE.
33. Not knowing that she was his sister-in-law.
34. Of the levirate marriage.
35. In such cases the validity of the kinyan is obvious.
36. Cf. supra p. 355, n. 3.
37. So BaH a.l. Cur. edd. omit 'or he … error'.
38. Of the levirate marriage.
39. Kinyan is nevertheless constituted.
40. COMPULSION implying unconsciousness of action.