Babylonian Talmud: Tractate Yebamoth

Folio 119a

CHAPTER XVI

MISHNAH. A WOMAN WHOSE HUSBAND AND RIVAL WENT TO A COUNTRY BEYOND THE SEA, AND TO WHOM PEOPLE CAME AND SAID, 'YOUR HUSBAND IS DEAD', MUST NEITHER MARRY AGAIN¹  NOR CONTRACT LEVIRATE MARRIAGE²  UNTIL SHE HAS ASCERTAINED WHETHER HER RIVAL IS PREGNANT.³  IF SHE HAD⁴  A MOTHER-IN-LAW⁵  SHE NEED NOT APPREHEND [THE POSSIBILITY OF THE BIRTH OF ANOTHER SON];⁶  BUT IF SHE DEPARTED WHILE PREGNANT [SUCH POSSIBILITY] MUST BE TAKEN INTO CONSIDERATION.⁷  R. JOSHUA RULED; SHE NEED NOT APPREHEND [SUCH A POSSIBILITY].⁸

GEMARA. What is implied by⁹  'HER RIVAL'?¹⁰  — It is this that we are told: {The possibility of a birth in respect] of that rival¹¹  need be apprehended; in respect of another rival, however, it need not be apprehended.¹²

MUST NEITHER MARRY AGAIN NOR CONTRACT LEVIRATE MARRIAGE etc. It is quite proper that she shall not contract levirate marriage since it is possible that [her rival] is pregnant and that she would in consequence cause an infringement¹³  [of the prohibition against marriage] of a brother's wife, which is Pentateuchal; but why should she not marry [a stranger]? The majority of women should be taken as a criterion¹⁴  and the majority of women conceive and bear children! Must it then¹⁵  be assumed that [the ruling is that of] R. Meir who takes a minority also into consideration?¹⁶  — It may even be said [to represent the view of] the Rabbis; for the Rabbis follow¹⁷  the majority principle only where the majority is actually present¹⁸  as, for instance, in the case of 'nine shops'¹⁹  and 'Sanhedrin',²⁰  but in respect of a majority that is not actually present²¹  the Rabbis were not guided by the majority principle.

Behold the case of a minor boy and a minor girl, where the majority is one that is not actually present and the Rabbis nevertheless follow the majority principle; for it was taught: A minor, whether male or female, may neither perform nor submit to halizah, nor may he contract levirate marriage; so R. Meir. They said to R. Meir: You spoke well [when you ruled] that 'He may neither perform nor submit to halizah', since in the Pentateuchal section²²  man was written,²³  and we draw a comparison between 'woman' and man.²⁴  What, however, is the reason why he may not contract levirate marriage? He replied: Because a minor male might be found to be a saris;²⁵  a minor female might be found to be incapable of procreation; and thus the law of incest would be violated. The Rabbis, however, maintain, 'Follow the majority of male minors'; and the majority of male minors are not sarisin;²⁶  'Follow the majority of female minors' and the majority of female minors are not incapable of procreation!²⁷  — But, clearly, [it must be admitted], our Mishnah represents the view of R. Meir.

How have you explained it?²⁸  That it is in agreement with the view of²⁹  R. Meir? Read, then, the final clause: IF SHE HAD A MOTHER-IN-LAW SHE NEED NOT APPREHEND [THE POSSIBILITY OF THE BIRTH OF ANOTHER SON]; but why? One should be guided by the majority of women, and the majority of women conceive and bear while a minority miscarry, and, since all those who bear [produce] a half of males and a half of females, the minority of those who miscarry should be added to the half [of those who bear] females, and so the males would constitute a minority which³⁰  should be taken into consideration!³¹  — It is possible that since the woman was confirmed³²  in her status of permissibility to strangers³³  [the possibility of the birth of a levir] was not taken by him³⁴  into consideration. In the first clause, then,³⁵  where she was confirmed in the status of eligibility for the levirate marriage,³⁶  let her contract the levirate marriage! — R. Nahman replied in the name of Rabbah b. Abbuha: In the first clause where a prohibition which is subject to the penalty of kareth [is involved, the possibility of the birth of a son]³⁷  had to be provided against; in the final clause, however, where a prohibitory law [only is involved]³⁸  no [such possibility]³⁹  was taken into consideration. Said Raba: Consider: The one [prohibition] is Pentateuchal and the other also is Pentateuchal;⁴⁰  what matters it, then, whether the prohibition is one involving kareth or whether it is only a mere prohibitory law? — Rather, said Raba;

1. Since her husband, when he departed, was known to have had no issue.
2. It being possible that her rival had a child from their husband.
3. If the rival is found to be pregnant the woman is free to marry again; and if she is not pregnant, levirate marriage or halizah must be performed.
4. Overseas.
5. Who, at the time of her departure, had no other son but the one who is now dead.
6. To her mother-in-law. It is only in respect of a rival that the possibility of a birth must be taken notice of, since a child, whatever its sex, exempts the woman from the levirate obligations. In the case of a mother-in-law, however, the birth of a female would not affect the woman's freedom to marry again, since it is only a male that subjects her to the levirate obligations. There is no need to apprehend that the mother-in-law had not only (a) given birth to a child but also (b) that that child was not a female but a male.
7. Since the only doubt is whether the child was a male. Cf. supra n. 6.
8. Because here also two possibilities must be postulated: (a) that the mother-in-law did not miscarry and (b) that the child born was not a female but a male.
9. Lit., 'she' or 'it'.
10. Emphasis on HER.
11. Who went with her husband to a country beyond the sea.
12. If witnesses testified that the known rival (v. supra n. 11) was not pregnant there is no need to apprehend the possibility of a marriage with another wife who may have given birth to a child.
13. Lit., 'meet'.
14. Lit., 'go'.
15. Since the majority principle is not followed.
16. Hul. 6a; and since some women do not conceive and bear, the possibility that the rival belonged to this minority must be provided against by forbidding levirate marriage. Would then our anonymous Mishnah represent the view of an individual!
17. Lit., 'when do they go'.
18. Lit., 'which is before us'.
19. Which were selling permitted meat, while one shop in their vicinity was selling forbidden meat. If between these shops a piece of meat was found and it is not known from which shop it came, it is assumed to be permitted meat, since the majority of the shops were selling meat of such a character. V. Hul. 95a.
20. A majority of whom (twelve against eleven) are in favour of a certain decision. V. Sanh. 40a.
21. The majority of women in general who are assumed to conceive and bear.
22. Dealing with halizah.
23. V. Deut. XXV, 7.
24. As the male must be of mature age and not a minor, so must also be the female.
25. V. Glos.
26. Pl. of saris, v. Glos.
27. Bek. 19b. Cf. supra 61b, 105b. The majority spoken of here is, surely, one which is not actually present, and the Rabbis are nevertheless guided by it!
28. Lit., 'in what did you place it', sc. the first clause of our Mishnah.
29. Lit., 'like'.
30. According to R. Meir.
31. And, contrary to the ruling in our Mishnah, the woman should, as in the first clause, be forbidden marriage.
32. When her mother-in-law departed.
33. Lit., 'to the market'; because there was no known levir.
34. R. Meir.
35. If a woman's confirmed status at a certain period is a determining factor.
36. Since her husband when he departed, had no issue.
37. By the rival.
38. The marriage of a yebamah to a stranger.
39. That a son was born by the mother-in-law.
40. Neither is a mere Rabbinically preventive measure.

in the first clause the woman's confirmed status¹  [would subject her] to the levirate marriage while the majority principle²  [would enable her] to marry any stranger;³  and, though 'confirmed status' is not as important a factor as a majority, the minority of women who miscarry must be added to the 'confirmed status' so that the factors on either side are equally balanced;⁴  hence⁵  she MUST NEITHER MARRY AGAIN NOR CONTRACT LEVIRATE MARRIAGE. In the final clause, however, the woman's confirmed status⁶  as well as the majority principle⁷  [points] to [the permissibility of marriage with] any stranger,³  so that [viable] males⁸  constitute a minority of a minority;⁹  and a minority of a minority is not taken into consideration even by R. Meir.

MUST NEITHER MARRY AGAIN NOR CONTRACT LEVIRATE MARRIAGE etc. For ever?¹⁰  — Ze'iri replied: [She waits] on account of herself three months¹¹  and on account of her associate nine,¹²  and then she may, at all events,¹³  perform halizah. R. Hanina said: On account of herself [she must wait] three months, but on account of her associate¹⁴  for ever.¹⁵  But let her perform halizah¹⁶  at all events!¹⁷  — Both Abaye b. Abin and R. Hanina b. Abin replied: This¹⁸  is a preventive measure against the possibility that the child¹⁹  might be viable²⁰  as a result of which²¹  you would have to subject her to the necessity of a public announcement²²  in respect of the priesthood.²³  Well, let her be subjected to the necessity! — It may happen that someone would be present at the halizah and not at the announcement,²⁴  and he would form the opinion²⁵  that a haluzah was permitted to a priest.

We learned: [If a woman states], 'A son was given to me [while I was] in a country beyond the sea' and she also asserts, 'My son died and afterwards my husband died', she is believed. [If she states, however], 'My husband died and afterwards my son died', she is not believed, but note is taken of her assertion and she must, therefore, perform halizah but may not contract levirate marriage.²⁶  Let it, however, be apprehended that witnesses might come and confirm her statement and that, as a result, you would subject her to the necessity of an announcement in respect of the priesthood! — R. Papa replied: [This refers to] a woman divorced.²⁷  R. Hiyya son of R. Huna replied: [It refers to one] who stated 'I and he²⁸  were hidden in a cave'.²⁹

MISHNAH. [IN THE CASE OF] TWO SISTERS-IN-LAW³⁰  ONE OF WHOM³¹  STATED, 'MY HUSBAND IS DEAD', AND THE OTHER ALSO STATED, 'MY HUSBAND IS DEAD', THE FORMER³¹  IS FORBIDDEN³²  ON ACCOUNT OF THE HUSBAND OF THE LATTER,³³  AND THE LATTER IS FORBIDDEN³⁴  ON ACCOUNT OF THE HUSBAND OF THE FORMER.³³  IF THE ONE HAD WITNESSES³⁵  AND THE OTHER HAD NO WITNESSES,³⁵  SHE WHO HAD THE WITNESSES IS FORBIDDEN,³⁶  WHILE SHE WHO HAD NO WITNESSES IS PERMITTED.³⁷  IF THE ONE HAD CHILDREN AND THE OTHER HAD NO CHILDREN,³⁸  SHE WHO HAD CHILDREN³⁹  IS PERMITTED³⁴  AND SHE WHO HAD NO CHILDREN⁴⁰  IS FORBIDDEN.³⁴  IF THEY⁴¹  CONTRACTED LEVIRATE MARRIAGES,⁴²  AND THE LEVIRS DIED, THEY⁴³  ARE FORBIDDEN [TO MARRY AGAIN].⁴⁴  R. ELEAZAR⁴⁵  RULED: SINCE THEY WERE ONCE PERMITTED TO MARRY THE LEVIRS⁴⁶  THEY ARE PERMITTED TO MARRY ANY MAN.

GEMARA. A Tanna taught: If the one⁴⁷  had witnesses⁴⁸  and also children, and the other had neither witnesses nor children, both are permitted [to marry again].⁴⁹

IF⁵⁰  THEY CONTRACTED LEVIRATE MARRIAGES, AND THE LEVIRS DIED, THEY ARE FORBIDDEN [TO MARRY AGAIN]. R. ELEAZAR RULED: SINCE THEY WERE ONCE PERMITTED TO THE LEVIRS THEY ARE PERMITTED TO MARRY ANY MAN. Raba inquired: What is R. Eleazar's reason? Is it because he is of the opinion that a rival⁵¹  is eligible to tender evidence in favour of her associate or is it because [he holds that] she would not⁵¹  cause injury to herself?⁵²  What practical difference is there [between the two assumptions]?

1. It was an established fact that her husband had no issue and that a levir was in existence.
2. Most women bear viable children and her rival's child would exempt her from the levirate obligations.
3. Lit., 'to the market'.
4. Lit., 'and it is a half and a half', 'confirmed status' plus minority pointing to the levirate marriage while the majority principle points to permissibility to marry any stranger.
5. Since neither consideration can be regarded as more weighty than the other.
6. As one who had no brother-in-law.
7. Miscarriages and the births of females constitute a majority against the minority of births of viable males.
8. Only a viable male child exempts a woman from the levirate obligations.
9. I.e., besides the fact that viable males are in a minority (v. supra n. 10) the possibility of the birth of a viable male is still less to be taken note of in view of the confirmed status of the woman (v. supra note 9).
10. But why! Let her perform halizah and thus at all events procure her freedom. V. infra p. 844, n. 5.
11. As any other woman whose husband died. V. supra 42b.
12. Since should her rival be pregnant, her levirate bond could not be severed by halizah but by the actual birth of a viable child.
13. Whether the rival gave birth to a child or not. V. infra note 5.
14. Her rival who might he pregnant.
15. Until it is definitely ascertained whether her rival had given birth to a viable child.
16. After a period of nine months (v. supra p. 843, n. 15), and so procure her freedom to marry again.
17. Since either she is exempted altogether from the levirate obligations by the birth of her rival's child (if one was horn) or (if no viable child was born) she gains her freedom by the halizah.
18. That no halizah must be performed; v. supra n. 3.
19. Of the rival.
20. In consequence of which the halizah would become null and void as if it had never taken place.
21. Lit., 'it is found'.
22. That the halizah was unnecessary and consequently null and void.
23. I.e., that she is permitted to marry a priest.
24. V. supra note 10.
25. Should she eventually be married to a priest.
26. Supra 118b, q.v. for notes.
27. From a former husband; before she was married to the one now deceased. As a divorcee she remains forbidden to marry a priest even if the halizah is subseqeuntly found to have no validity.
28. She and her husband together with their son.
29. When death occurred. Since no one was present there is no need to provide against the possibility of the appearance of witnesses.
30. The wives of two brothers.
31. Lit., 'this'.
32. To marry a stranger.
33. Who might, in fact, he alive and with whom halizah or levirate marriage must he performed. A woman is eligible to tender evidence on the death of her husband in so far only as to enable herself to marry again. She is ineligible, however, to give evidence enabling her sister-in-law to marry again.
34. To marry again.
35. That her husband was dead.
36. To marry a stranger; since there are no witnesses to testify to the death of the levir. The evidence of his wife alone (cf. supra n. 4) is not sufficient for the purpose.
37. To marry any stranger; since she herself is believed in respect of the death of her husband while in respect of the death of the levir the evidence of the witnesses is available.
38. And neither had witnesses.
39. Who exempt their mother from the levirate bond.
40. And who is consequently subject to the levirate bond of a man whose death is attested only by her sister-in-law whose word cannot he accepted (cf. supra n. 4).
41. The two sisters-in-law spoken of in the first clause of our Mishnah, neither of whom had children nor was able to produce witnesses to attest her husband's death.
42. With the levirs other than the absent husbands.
43. V. supra note 12.
44. Any stranger. Though the evidence of each woman was valid to enable herself to contract levirate marriage, it is not valid to exempt her sister-in-law- from the levirate bond (cf. supra note 4), and the possibility that their absent levirs (the first husbands) were still alive must he taken into consideration.
45. Var. lec. R Eliezer.
46. On the assumption that their husbands were dead.
47. Of two sisters-inlaw who stated that their husbands were dead.
48. To confirm her statement.
49. The former because of her children who exempt her from the levirate bond; and the latter, because witnesses had testified to the death of her levir while she herself is believed in respect of the death of her husband.
50. Cur. edd. do not indicate by the usual stops that this passage is derived from our Mishnah. Cf. however, Bomb. ed.
51. By a statement whereby she injures her associate.
52. Her evidence here would injure herself as it would her associate. Where, however, her associate alone would be the sufferer a rival's evidence is not accepted.