Babylonian Talmud: Tractate Yebamoth

Folio 106a

Our Rabbis taught: A halizah under a false assumption¹  is valid.²  What is meant by 'a halizah under a false assumption'? Resh Lakish explained: Where a levir is told, 'Submit to halizah and you will thereby wed her'. Said R. Johanan to him:³  I am in the habit of repeating a Baraitha, 'Whether he⁴  had the intention⁵  [of performing the commandment of halizah] and she had no such intention, or whether she had such intention and he had not, her halizah is invalid, it being necessary⁶  that both shall at the same time have such intention',⁷  and you say that her halizah is valid!⁸  But [in fact this is the meaning]:⁹  When a levir is told, 'Submit to her halizah on the condition that she gives you two hundred zuz'.¹⁰

So it was also taught [elsewhere]: A halizah under a false assumption is valid; and what is meant by a halizah under a false assumption? One in which the levir is told 'Submit to her halizah on condition that she gives you two hundred zuz'. Such an incident, in fact, occurred with a woman who fell to the lot of an unworthy levir who was told, 'Submit to her halizah on condition that she gives you two hundred zuz'. When this case came before R. Hiyya he ruled that the halizah was valid.

A woman¹¹  once came before R. Hiyya b. Abba.¹²  'Stand up,¹³  my daughter', the Rabbi said to her. 'Her sitting is her standing',¹⁴  replied her mother.¹⁵  'Do you know this man?'¹⁶  the Rabbi asked. 'Yes', she answered him, 'it is her money that he saw and he would like to it'.¹⁷  'Do you not like him then?' he asked the woman.¹⁸  'No', she replied. 'Submit to her halizah', [the Rabbi] said to [the levir], 'and you will thereby wed her'. After the latter had submitted to halizah at her hands he said to him, 'Now she is ineligible to marry you; submit again to a proper halizah that she may be permitted to marry a stranger'.

A daughter of R. Papa's father-in-law fell to the lot of a levir who was unworthy of her.¹⁹  When [the levir] came before Abaye the latter said to him, 'Submit to her halizah and you will thereby wed her'. Said R. Papa to him, 'Does not the Master accept the [relevant] ruling of R. Johanan?'²⁰  — 'What then could I tell him?' [the other asked]. 'Tell him', the first replied, '"submit to her halizah on condition that she gives you two hundred zuz."' After [the levir] had submitted to halizah at her hand [Abaye] said to her,¹⁸  'Go and give him [the stipulated sum]'.²¹  'She', R. Papa replied, 'was merely fooling him';²²  was it not, in fact taught: If a man escaping from prison beheld a ferry boat and said [to the ferryman], 'Take a denar and lead me across',²³  [the latter] can only claim his ordinary fare.²⁴  From this then it is evident that the one can say to the other, 'I was merely fooling you'; so here also²⁵  [the woman may say], 'I was merely fooling you'. 'Where is your father?'²⁶  [Abaye] asked him. — 'In town', the other replied. 'Where is your mother?'²⁶  — 'In town', the other again replied. He set his eyes upon them and they died.

Our Rabbis taught:²⁷  A halizah under a false assumption is valid; a letter of divorce [given] under a false assumption is invalid.²⁸  A halizah under coercion is invalid; a letter of divorce [given] under compulsion is valid. How is this²⁹  to be understood? If it is a case where the man [ultimately]³⁰  says, 'I am willing', the halizah also [should be valid]; and if he does not say, 'I am willing', a letter of divorce also should not [be valid]! — It is this that was meant: A halizah under a false assumption is always valid, and a letter of divorce [given] on a false assumption is always invalid; but a halizah under coercion and a letter of divorce [given] under coercion are sometimes valid and sometimes invalid, the former when the man [ultimately]³⁰  declared, 'I am willing', and the latter, when he did not declare, 'I am willing'. For it was taught: He shall offer it³¹  teaches that the man is coerced.³²  It might [be assumed that the sacrifice may be offered up] against his will, it was, therefore, expressly stated, In accordance with his will.³³  How then [are the two texts to be reconciled]? He is subjected to pressure until he says, 'I am willing'. And so you find in the case of letters of divorce for women: The man³⁴  is subjected to pressure until he says, 'I am willing'.³⁵

Raba reported in the name of R. Sehora in the name of R. Huna: Halizah may be arranged even though [the parties]³⁶  are unknown³⁷  A declaration of refusal³⁸  may be arranged even though the parties³⁹  are unknown.³⁷  For this reason⁴⁰  no certificate of halizah may be written⁴¹  unless the parties are known,⁴²  and no certificate of mi'un⁴³  may be written⁴¹  unless the parties are known,⁴²  for fear of an erring Beth din.⁴⁴

Raba in his own name, however, stated: halizah must not be arranged unless the parties⁴⁵  are known,⁴⁶  nor may a declaration of refusal⁴³  be heard unless the parties⁴⁷  are known.⁴⁶  For this reason⁴⁸  it is permissible⁴⁹  to write a certificate of halizah⁵⁰  even though the parties are not known,⁵¹  and it is also permissible⁴⁹  to write a certificate of mi'un⁵²  even though the parties are not known,⁵¹  and we are not afraid of an erring Beth din.⁵³

1. [H] (rt. [H] Hof.) lit., 'misled'.
2. Tosef. Yeb. XII, Keth. 74a.
3. Resh Lakish.
4. The levir.
5. When he submitted to halizah.
6. Lit., 'until'.
7. Tosef. Yeb. XII, supra 102b.
8. Even when the levir was misled into thinking that he was performing an act of marriage!
9. Of 'halizah under a false assumption'.
10. V. Glos. Even if the promised sum was not forthcoming, the halizah is valid. Any condition in connection with an act which, like halizah. cannot be performed through an agent is illegal and void. Cf. Keth. 74a.
11. A sister-in-law who fell to the lot of an undesirable levir. (V. infra).
12. To meet the levir.
13. I.e., to contract the levirate marriage.
14. She was lame or suffered from some other chronic disease which disabled her from standing up. Another interpretation: Her 'sitting', i.e., her abstention from the marriage is her 'standing', i.e., salvation.
15. Cf. BaH.
16. I.e., did she know why he insisted on marrying a disabled woman? According to the second interpretation the question was whether she knew anything against his character.
17. After which he would get rid of her. Lit., 'and he desires to eat it from her'.
18. The sister-in-law.
19. But who insisted on contracting with her the levirate marriage.
20. Requiring both the man and the woman to be of the unanimous intention, during the ceremony, of fulfilling the commandment of halizah. V. supra.
21. Though the halizah was in any case valid, Abaye held that the condition must be complied with.
22. Lit., '(the trick of) "I fooled with you", she did to him'. Since the halizah is valid, and since it is the levir's duty to perform it, no legal obligation is incurred by promising him an excessive sum for doing that which it was his duty to do.
23. An excessive fee for crossing a river.
24. B.K. 116a.
25. In the case of halizah under discussion.
26. Abaye's query implied that R. Papa seemed to have all his needs provided for by his parents and that this left him leisure enough to indulge in fine dialectics.
27. Others read, 'Raba said' (She'iltoth section Ki Theze).
28. If the condition on which it was given was not fulfilled. A condition in the case of divorce has legal validity, since a divorce may be effected through the agency of witnesses. V. Keth. 74a and cf. supra p. 730, n. 10, final clause.
29. The second ruling relating to coercion.
30. After Beth din had brought pressure to bear upon him.
31. Lev. I, 3.
32. To carry out his vow if he undertook to bring an offering.
33. [H] ibid., E.V., 'that he may be accepted'.
34. Who refuses to give a divorce.
35. Cf. Kid. 50a, B.B. 48a, Ar. 21a.
36. The levir and his sister-in-law who apply for a halizah to be arranged for them.
37. To the Beth din.
38. Mi'un. V. Glos.
39. The husband and the minor.
40. Since halizah or mi'un may he arranged even for unknown persons whose declarations might be false.
41. For a woman who applied for such a certificate to enable her to marry again. even if the usual declaration, that the parties were known to the writers, is omitted. V. infra n. 4.
42. To the writers who witnessed the ceremony.
43. Mi'un. V. Glos.
44. I.e., a second Beth din who might be called upon to deal with the question of the remarriage of the parties and who might be unaware of the law that halizah and mi'un may be arranged even for unknown persons, and who, in their reliance on the written certificate, might permit the woman to marry again; overlooking the fact that the usual declaration that the parties were known to the writers (cf. supra note 1) was wanting from the certificate.
45. V. supra p. 732, n. 10.
46. To the Beth din.
47. The husband and the minor.
48. Since no Beth din would allow halizah and mi'un unless the parties are known to them.
49. For witnesses who were present during one or other, as the case may be, of such ceremonies.
50. To enable the woman to marry again.
51. To the writers who witnessed the ceremony.
52. Cf. supra notes 3 and 10.
53. Cf. supra note 4 mutatis mutandis. Since the first Beth din must know the parties the question of mistaken identity does not arise.

MISHNAH. [THIS IS THE PROCEDURE IN THE PERFORMANCE OF] THE COMMANDMENT OF HALIZAH: HE¹  AND HIS DECEASED BROTHER'S WIFE COME UNTO THE BETH DIN, AND [THE LATTER] OFFER HIM SUCH ADVICE AS IS SUITABLE TO HIS CONDITION,²  FOR IT IS SAID IN THE SCRIPTURES, THEN THE ELDERS OF HIS CITY SHALL CALL HIM AND SPEAK UNTO HIM.³  SHE THEN ANNOUNCES: MY HUSBAND'S BROTHER REFUSETH TO RAISE UP UNTO HIS BROTHER A NAME IN ISRAEL; HE WILL NOT PERFORM THE DUTY OF A HUSBAND'S BROTHER UNTO ME.⁴  THEN HE MAKES THE DECLARATION: I LIKE NOT TO TAKE HER.⁵  [THESE FORMULAE] WERE ALWAYS SPOKEN IN THE HOLY TONGUE.⁶  THEN SHALL HIS BROTHER'S WIFE DRAW NIGH UNTO HIM IN THE PRESENCE OF THE THE ELDERS AND DRAW⁷  HIS SHOE FROM OFF HIS FOOT, AND SPIT BEFORE⁸  HIS FACE,⁹  SUCH SPITTLE AS THE JUDGES CAN SEE, AND SHE RAISES HER VOICE AND SAYS:¹⁰  SO SHALL IT BE DONE UNTO THE MAN THAT DOTH NOT BUILD UP HIS BROTHER'S HOUSE,¹¹  THUS FAR¹²  USED THEY TO RECITE.¹³  WHEN, HOWEVER, R. HYRKANUS, UNDER THE TEREBINTH AT KEFAR ETAM,¹⁴  ONCE DICTATED THE READING AND COMPLETED THE ENTIRE SECTION,¹⁵  THE PRACTICE WAS ESTABLISHED TO COMPLETE THE ENTIRE SECTION.

[THAT] HIS NAME SHALL BE CALLED IN ISRAEL, 'THE HOUSE OF HIM THAT HAD HIS SHOE DRAWN¹⁶  OFF',¹⁷  IS A COMMANDMENT [TO BE PERFORMED] BY THE JUDGES AND NOT BY THE DISCIPLES.¹⁸  R. JUDAH, HOWEVER, RULED: IT IS A DUTY INCUMBENT UPON ALL PRESENT TO CRY '[THE MAN]¹⁹  THAT HAD HIS SHOE DRAWN¹⁶  OFF'.¹⁷

GEMARA. Rab Judah stated: [This is the procedure in the performance of] the commandment of halizah: She recites;²⁰  he recites;²¹  she draws off his shoe, spits and recites.²²  What does he teach us [by this statement]? This is our very Mishnah! — It is this that he teaches us: The prescribed procedure is such, but if the order was reversed, it does not matter. So it was also taught: Whether the drawing off of the shoe preceded the spitting or whether the spitting preceded the drawing off, the act is valid.²³

Abaye ruled: The man who dictates the halizah formulae²⁴  shall not read for the woman [the word] not²⁵  separately and [the clause] he will perform the duty of a husband's brother unto me²⁶  separately, since this²⁷  would convey the meaning, 'He desires to perform the duty of a husband's brother to me'; but [should read without a pause]. He will not perform the duty of a husband's brother unto me. Nor shall he read for the levir [the word] not²⁸  separately and [the clause] I like²⁸  separately; for this²⁷  would convey the meaning. 'I like to take her'; but [he should read without a pause], I like not to take her.²⁹  Raba, however, stated: This³⁰  is only the conclusion³¹  of a sentence, and in a concluding clause [a pause] is of no consequence.³²

R. Ashi found R. Kahana making a painful effort to read out for a woman,³³  He will not perform the duty of a husband's brother unto me,³⁴  [without a pause]. 'Does not the Master,' he asked him, 'accept the ruling of Raba?'³⁵  — 'Raba', the other replied, 'admits in [the case of the formula] He will not perform the duty of a husband's brother unto me³⁴  [that no pause is permitted].³⁶

Abaye stated: The person who writes a certificate of halizah shall word it as follows: 'We read out for her³⁷  from My husband's brother refuseth³⁸  to³⁹  will perform the duty of a husband's brother unto me;⁴⁰  and we read out for him⁴¹  from not⁴²  to³⁹  to take her;⁴³  and we read out for her from So⁴⁴  to⁴⁵  him that had his shoe drawn off.⁴⁶

Mar Zutra ruled [the paper]⁴⁷  and copied the full text.⁴⁸  Mar b. Idi⁴⁹  demurred: But, surely, [a section only of the Pentateuch] is not permitted to be written!⁵⁰  The law, however, is in agreement with the ruling of Mar Zutra.⁵¹

Abaye stated: If, when she spat. the wind carried the spittle away,⁵²  her act is invalid.⁵³  What is the reason? — It is necessary that she shall spit before⁵⁴  his face.⁴⁴  If, therefore, he was tall and she was short, and the wind carried the spittle away,⁵⁵  her act is deemed to have been⁵⁶  before his face.⁵⁷  If, however, she was tall and he was short, it is necessary that [the spittle] shall drop to the level of his face before⁵⁸  it disappears.

Raba stated: If she ate garlic and then spat⁵⁹  or if she ate a clod of earth and then spat,⁵⁹  her act is invalid.⁵³  What is the reason? — Because it is necessary that she shall spit⁴⁴  of her own free will, which is not the case here.⁶⁰

Raba further stated: The judges must see the spittle issuing from the mouth of the sister-in-law, because it is written in Scripture Before the eyes of the elders … and spit.⁶¹

[THAT] HIS NAME SHALL BE CALLED IN ISRAEL, 'THE HOUSE OF HIM THAT HAD HIS SHOE DRAWN OFF' IS A COMMANDMENT [TO BE PERFORMED] BY THE JUDGES AND NOT BY THE DISCIPLES. It was taught: R. Judah stated: We were once sitting before R. Tarfon when a sister-in-law came to perform halizah, and he said to us, 'Exclaim all of you: Haluz ha-na'al,⁶²  haluz ha-na'al, haluz ha-na'al!'

1. The levir.
2. As, for instance, whether the respective ages or characters of the parties are likely to be conducive to a happy union. Cf. supra 44a, 101b.
3. Deut. XXV, 8.
4. Deut. XXV, 7.
5. Ibid. 8.
6. The classical Hebrew in which the formulae appear in the Scripture. Cf. Sot. 32a.
7. E.V., loose.
8. E.V., in.
9. Deut. XXV, 9.
10. E.V. 'And she shall answer and say'.
11. Ibid.
12. I.e., to the end of v. 9.
13. Or 'dictate'. The judges dictated and the parties recited.
14. [Var. lec.. [H], Cambridge Mishnah M.S. [H]. Krauss MGWF 1907, p. 332 reads [H], Capphare Accho in lower Galilee. Etam is mentioned in Judges XV, 8 and 11, I Chron. IV, 32 and II Chron. XI, 6].
15. To the end of v. 10.
16. E.V., loosed.
17. Deut. XXV, 10.
18. Who happen to be present when the halizah ceremony is being performed.
19. E.V., him.
20. The formula prescribed in Deut. XXV, 7.
21. The formula, ibid. 8.
22. Ibid. 9. Cf. Sanh. 49b.
23. Lit., 'what he did is done'. Sanh. 49b, supra 105a.
24. Lit., 'document', 'deed'.
25. [H]. (Deut. XXV, 7) which is the first word of the formula.
26. [H] ibid.
27. The severance of the latter clause from the negative particle.
28. Deut. XXV, 8, cf. supra n. 3.
29. Ibid.
30. Each of the clauses mentioned by Abaye.
31. [H]. This is the reading of Alfasi, Asheri and BaH. Cur. edd., [H] 'breaking', 'pausing'.
32. Hence it is permitted to make a break between 'not' and the rest of the formula.
33. A sister-in-law for whom he was arranging a halizah.
34. The prescribed formula in Deut. XXV, 7.
35. Supra, that a pause after 'not' is immaterial.
36. It is only in the formula of the levir, in which the negative particle, 'not', forms the first word and cannot consequently be misunderstood as being connected with any previous word, that a pause does not matter. In the woman's formula, however, where the negative particle occurs in the middle of a clause, a pause after it might imply the connection of the negative with the preceding words, so that the clause following it would assume the meaning of an affirmative statement.
37. The sister-in-law.
38. The prescribed formula in Deut. XXV, 7.
39. The middle portion of the formula is omitted, since it is forbidden to write down more than three consecutive words of the Pentateuch on unruled paper (cf. Git. 6b). The words permitted to be written according to Abaye represent in the Hebrew no more than two consecutive words.
40. V. supra p. 735, n. 4.
41. The levir.
42. [H], the beginning of the levir's first formula.
43. Ibid.
44. Deut. XXV, 9.
45. V. supra note 3.
46. Ibid. 10, E.V., loosed.
47. For the halizah certificate, cf. Git. 6b.
48. Of each formula, not merely, as Abaye taught, its first and last words.
49. Others, 'Mar b. R. Ashi'. V. Alfasi and Asheri.
50. The Pentateuch in its entirety only may be copied. Cf. Git. 60a.
51. The prohibition against copying a section of the Pentateuch being limited to one that is to be used for teaching purposes. One, however, that is to be used as a mere record, as in the case of the Halizah certificate, does not come under the prohibition.
52. Lit., 'received', 'clutched', 'absorbed'.
53. Lit., 'she did not do anything'.
54. E.V., in.
55. V. supra note 16.
56. Lit., 'there is'.
57. lbid., since at the moment the spittle left her mouth it was before the levir's face.
58. Lit., 'and then'.
59. Impulsively owing to the unpleasant taste in her mouth.
60. The garlic or the clod of earth having been the cause of her involuntary or instinctive action.
61. Deut. XXV, 9.
62. '(The man) that had his shoe drawn off'. V. Deut. XXV, 10.