Babylonian Talmud: Tractate Yebamoth

Folio 20a

that he may divorce her with a letter of divorce and that he may remarry her',¹  let it there also be said, 'And perform the duty of a husband's brother unto her,²  the former levirate attachment still remains with her' and, consequently, she should require halizah [also]! — There the case is different; since Scripture stated, 'And take her to him to wife',²  as soon as he married her she becomes his wife in every respect. If so, [the same deduction should be applied] here also! — Surely the All Merciful has written, 'And perform the duty of a husband's brother unto her'.²  And why the differentiation?³  - It stands to reason that permission⁴  should be applied to that which is [also otherwise] permitted,⁵  and that prohibition⁶  should be applied to that which is [also otherwise] prohibited.⁷

According to R. Simeon, however, who stated, 'Because when he was born he found her permitted, and she was never forbidden to him even for one moment',⁸  a brother, if this reason is tenable,⁹  should be allowed to take in levirate marriage his maternal sister whom his paternal brother had married prior to his birth, dying subsequently, since, when he was born, he found her permitted.¹⁰  — Whither did the 'prohibition of sister' vanish?¹¹  — Here, also, whither did the prohibition of 'the wife of the brother who was not his contemporary' vanish! — The one¹²  is a prohibition which can never be lifted; the other¹³  is a prohibition which may be lifted.¹⁴

MISHNAH. A GENERAL RULE HAS BEEN LAID DOWN¹⁵  IN RESPECT OF THE DECEASED BROTHER'S WIFE:¹⁶  WHEREVER SHE IS PROHIBITED¹⁷  AS A FORBIDDEN RELATIVE, SHE¹⁸  MAY NEITHER PERFORM THE HALIZAH NOR BE TAKEN IN LEVIRATE MARRIAGE. IF SHE IS PROHIBITED BY VIRTUE OF A COMMANDMENT¹⁹  OR BY VIRTUE OF HOLINESS,²⁰  SHE MUST PERFORM THE HALIZAH AND MAY NOT BE TAKEN IN LEVIRATE MARRIAGE. IF HER SISTER IS ALSO HER SISTER-IN-LAW,²¹  SHE²²  MAY PERFORM THE HALIZAH OR MAY BE TAKEN IN LEVIRATE MARRIAGE.²³

PROHIBITED BY VIRTUE OF A COMMANDMENT' [REFERS TO] THE SECONDARY DEGREES IN RELATIONSHIP FORBIDDEN BY THE RULING OF THE SCRIBES. 'PROHIBITED BY VIRTUE OF HOLINESS' [REFERS TO THE FOLLOWING FORBIDDEN CATEGORIES]: A WIDOW TO A HIGH PRIEST;²⁴  A DIVORCED WOMAN, OR ONE THAT HAD PERFORMED HALIZAH TO A COMMON PRIEST;²⁵  A FEMALE BASTARD OR A NETHINAH²⁶  TO AN ISRAELITE;²⁷  AND A DAUGHTER OF AN ISRAELITE,²⁷  TO A NATHIN²⁸  OR A BASTARD.

GEMARA. What was the GENERAL RULE meant to include?²⁹  — Rafram b. papa replied: TO include the rival of a woman who was incapable of procreation, In agreement with the view of R. Assi.³⁰

Some there are who say:³¹  'Whenever her prohibition is that of a forbidden relative then only is her rival forbidden; when, however, her prohibition is not that of a forbidden relative, her rival is not forbidden'. What was this meant to exclude? — Rafram replied: To exclude the rival of one incapable of procreation, contrary to the view of R. Assi.³⁰

IF HER SISTER IS ALSO HER SISTER-IN-LAW [etc.]. Whose sister? If the sister of her who is forbidden by Virtue of an ordinance of the Scribes be suggested, fit may be objected,] since, pentateuchally, she³²  is subject to the levir, he would³³  come in marital contact with the sister of her who is connected with him by the levirate bond! — It means the sister of her who is prohibited to him as a forbidden relative.

PROHIBITED BY VIRTUE OF A COMMANDMENT', [REFERS TO] THE SECONDARY DEGREES. Why are these designated, PROHIBITED BY VIRTUE OF A COMMANDMENT'? — Abaye replied: Because it is a commandment to obey the rulings of the Sages.

PROHIBITED BY VIRTUE OF HOLINESS' … A WIDOW TO A HIGH PRIEST; A DIVORCED WOMAN, OR ONE WHO HAD PERFORMED THE HALIZAH, TO A COMMON PRIEST. Why are these designated 'PROHIBITED BY VIRTUE OF HOLINESS'? — Because It is written in the Scriptures, They shall be holy onto their God.³⁴

It was taught: R. Judah reverses the order: prohibited by virtue of a commandment [refers to the following prohibited categories:] a widow to a high priest; a divorced woman or one that had performed halizah, to a common priest. And why are these designated, prohibited by virtue of a commandment? — Because it is written in the Scriptures, These are the commandments.³⁵  prohibited by virtue of holiness [refers to] the secondary degrees of relationship forbidden by the rulings of the scribes. And why are these designated, prohibited by virtue of holiness? — Abaye replied: Because whosoever acts in accordance with the rulings of the Rabbis is called a holy man. Said Raba to him: Then he who does not act in accordance with the rulings of the Rabbis is not called a holy man; nor is he called a wicked man either?³⁶  — No, said Raba: 'Sanctify yourself by that which is permitted to you'.³⁷

A WIDOW TO A HIGH PRIEST. An unqualified ruling is laid down making no distinction between a nissu'in³⁸  widow and an erusin³⁸  widow. Now, one can well understand the reason the case of a nissu'in widow [since marriage with her is forbidden by] a positive³⁹  and a negative precept,⁴⁰  and no positive precept⁴¹  may override both a negative and a positive precept. In the case, however, of an erusin widow [marriage with whom is forbidden by] a negative precept only,⁴²  let the positive precept⁴¹  override the negative⁴⁰  one? — R. Giddal replied in the name of Rab: Scripture stated, Then his brother's wife shall go up to the 'gate,⁴³  where there was no need to state his brother's wife;⁴⁴  why then was 'his brother's wife' specified? [To indicate that] there is a case of another⁴⁵  brother's wife who goes up for halizah but does not go up for levirate marriage.⁴⁶  And who is she? One of those prohibited⁴⁷  by a negative precept.⁴⁸

Might it⁴⁹  not be said [to include also] such as are subject to the penalty of kareth?⁵⁰  — Scripture said, If the man like not to take,⁵¹  if he likes, however, he may take her in levirate marriage, [hence it is to be inferred that] whosoever may go up to enter into levirate marriage may also go up to perform halizah and whosoever may not go up to enter into levirate marriage⁵²  may not go up to perform halizah either. If so, the same should apply also to those forbidden by a negative Precept! — But, surely, the All Merciful has included them [by the expression] 'His brother's wife'. What ground is there for such differentiation?⁵³

1. Supra 8b, q.v. for notes, infra 39a.
2. Deut. XXV, 5'
3. Lit., 'and what did you see', i.e., why apply the first part of the text to one case and the second part of the same text to the other?
4. To give ordinary divorce without submitting to halizah. and to remarry, which is derived from And take her to him to wife.
5. Ordinary levirate.
6. Implied in the words 'And perform the duty of a husband's brother unto her'.
7. I.e., 'the wife of his brother who was not his contemporary'.
8. Supra 19b, q.v. for notes.
9. Lit., 'but from now'.
10. When he was born she was already his 'brother's wife'.
11. Lit., 'whither did it go?'
12. Prohibition of a sister.
13. A brother's wife.
14. Where the brother died without issue. When the first brother died childless the prohibition of 'brother's wife' was removed and thus the widow was permitted to the second brother. Her connection with the first thus having come to an end, the third brother, as her legitimate levir through the second brother, may consequently marry her.
15. Lit., 'they said'.
16. Whose husband died without issue.
17. To marry the levir.
18. The rival, and much more so the forbidden relative herself.
19. Or 'an ordinance of the Scribes'. The term [H] is discussed infra.
20. [H] v. infra.
21. In the case where two sisters were married to two brothers who died childless, and both widows become subject to levirate marriage with a third brother towards whom one of them stood in any kind of forbidden relationship as, say. that of mother-in-law or daughter-in-law.
22. The sister of the forbidden relative.
23. Since the forbidden relative may never marry the levir, her sister does not come under the prohibition of 'the sister of his zekukah' i.e., of 'the woman related to him by the levirate bond'.
24. Whose holy status precludes him from marrying a widow. V. Lev. XXI, 13f.
25. Where his brother unlawfully married such a woman and died without issue. The levir must not marry her on account of his holy status. v. Lev. XXI, 7.
26. V. Glos.
27. Who is forbidden on the ground of the sanctity of Israel to marry such types.
28. V. Glos.
29. In addition to the forbidden relatives actually enumerated.
30. Who stated (supra 12a) that such a woman may neither perform halizah nor be taken in levirate marriage.
31. In interpretation of our Mishnah.
32. The woman forbidden by the ordinance of the Scribes.
33. Should he marry her sister.
34. Lev. XXI, 6.
35. Lev. XXVII, 34 which refers to all the priestly commandments laid down in that book.
36. Surely, a person disobeying the Rabbis is indeed a wicked man!
37. I.e., marriages forbidden by the rulings of the scribes are designated as 'prohibited by virtue of holiness' because these restrictions are designed to promote self-sanctification and as a barrier and a safeguard against marriage with those who are Pentateuchally forbidden.
38. V. Glos.
39. Lev. XXI, 13. And he shall take a wife in her virginity.
40. Ibid. v. 14, A widow … shall he not take.
41. That of the levirate marriage.
42. V. supra n. 6. The positive precept (v. n. 5) is not infringed since she is still a virgin.
43. Deut. XXV, 7.
44. Since the pronoun implied in [H] (then she shall go up) sufficiently indicates the subject which has been previously mentioned.
45. Cf. BaH a.l. Cur. edd., 'one'.
46. I.e., a brother's wife not coming under the obligation of levirate marriage as the one spoken of previously in the text.
47. Lit., 'guilty of'.
48. A widow to a High Priest. V supra p. 117, n. 6.
49. The text, His brother's wife.
50. And so subject them also to halizah.
51. Deut. xxv, 7'
52. Such as those who are subject to kareth.
53. Lit., 'what did you see', i.e., why include the one and exclude the other?

— This¹  stands to reason, since betrothal of those forbidden by a negative precept is valid while the betrothal of those subject to kareth is not valid.

Raba raised an objection: In the case of one forbidden by virtue of a commandment or by virtue of holiness, with whom the Ievir bad intercourse or participated in halizah, her rival is thereby exempt. Now, if one is to assume that those forbidden by a negative precept are Pentateuchally subject to halizah but not to the levirate marriage, why should her rival be exempt when he had intercourse with her? He raised the objection and he also supplied the answer: This is to be understood respectively;²  'he had intercourse with her' refers to one prohibited by virtue of a commandment,³  'participated in halizah with her' refers to the one forbidden by virtue of holiness.⁴

Raba raised an objection: He who is wounded in the stones or has his privy member cut off, a man-made saris,⁵  and an old man, may either participate in halizah or contract levirate marriage. How?⁶  If these died and were survived by brothers and by wives, and those brothers arose and addressed a ma'amar to the widows, or gave them letters of divorce, or participated with them in halizah, their actions are legally valid;⁷  if they had intercourse with them, the widows become their lawful wives.⁸  If the brothers died and they⁹  arose and addressed a ma'amar to their wives, or gave them divorce, or participated with them in halizah, their actions are valid,⁷  and if they had intercourse with them, the widows become their lawful wives but they¹⁰  may not retain them, because it is said in the Scriptures — He that is wounded in the stones or hath his privy member cut off shall not enter [into the assembly of the Lord].¹¹  Now, if it could be assumed that those forbidden by a negative precept are Pentateuchally subject to halizah and not to levirate marriage, why should the widows become their lawful wives if they¹²  had intercourse with them?¹³

But, said Raba, [say rather that] an erusin widow is forbidden¹⁴  by both a positive and a negative precept, for it is written in the Scriptures, They shall be holy unto their God.¹⁵  What, however, can be said in respect of a bastard or a nethinah?¹⁶  — It is written, And sanctify yourselves.¹⁷  If so,¹⁸  all the [negative precepts of the] Torah should be regarded as positive and negative since it is written in the Scriptures, And sanctify yourselves!¹⁷  But, said Raba, [the fact is that]¹⁹  an erusin widow is forbidden²⁰  as a preventive measure against the marriage of a nissu'in widow.²¹  What, however, can be replied in respect of a bastard and a nethinah?²²  — [The prohibition in] the case where a precept is applicable²³  is a preventive measure against [a marriage] where no precept is applicable. If so, let one's paternal brother's wife not be allowed levirate marriage as a preventive measure against marriage with the wife of his maternal brother! — 'We All Merciful made levirate marriage dependent on inheritance²⁴  [and the relationship] is, therefore, well known.²⁵  A woman, then, who has no children should not be taken in levirate marriage as a preventive measure against the marriage of a woman who has children! — The All Merciful made levirate marriage dependent on [the absence of] children, [and the fact²⁶  would be] well known. The wife of one's contemporary brother should not be taken in levirate marriage as a preventive measure against marriage with the wife of one's brother who was not one's contemporary! — The All Merciful has made it²⁷  dependent on dwelling together²⁸  [and the fact]²⁹  is well known. All women should not be taken in levirate marriage as a preventive measure against the marriage of a woman incapable of procreation! — This³⁰  is unusual.³¹  A bastard and a nethinah also are unusual!³²  — But, said Raba, [this is the reason]: The first act of Intercourse³³  is forbidden³⁴  as a preventive measure against a second act of intercourse.³⁵

It has been taught likewise: If they³⁶  had intercourse [with any of the forbidden women] they acquire [her as wife] by the first act of intercourse, but may not keep her for a second act of intercourse.³⁷

Subsequently Raba, others say R. Ashi, said: The statement I made³⁸  is valueless,³⁹  for Resh Lakish said, 'Wherever you come upon a combination of a positive and a negative precept and⁴⁰  you are able to act in conformity with both, well and good; but if not, the positive precept must override the negative'.⁴¹  Similarly here⁴²  it is possible to perform halizah, whereby one is enabled to keep the positive as well as the negative precept.

An objection was raised: If they³⁶  had intercourse [with any of the forbidden women] they acquire [her as wife]!⁴³  — This is indeed a refutation.

It was stated: Concerning an act of intercourse between a High Priest and a widow⁴⁴  [there is a difference of opinion between] R. Johanan and R. Eleazar. One maintains that it does not exempt her rival,⁴⁵  and the other maintains that it does exempt her rival.⁴⁶  )

1. The inclusion of the one who is prohibited by a negative precept and the exclusion of those who are subject to kareth.
2. Lit., 'he taught to sides'.
3. As defined in our Mishnah. I.e., a woman forbidden by Rabbinic ordinance but who is Pentateuchally permitted and subject to levirate marriage. Intercourse with her consequently exempts her rival.
4. With whom marriage is forbidden, and her halizah only exempts her rival.
5. Lit., 'eunuch of man', opp. to natural castration due to a disease etc. V. notes on the Mishnah, infra 79b.
6. I.e., in what circumstances is the law mentioned applicable.
7. Lit., 'what they have done is done'; a divorce is required in respect of the ma'amar; no marriage may take place after the divorce, though no ma'amar preceded it, and the halizah is valid.
8. Lit., 'they acquired'.
9. I.e., the maimed persons mentioned, or the old man.
10. I.e., those that are maimed. The old man is excluded. V. infra.
11. Deut. XXIII, 2. V. Tosef. Yeb. XI, infra 79b.
12. Who are crushed or maimed in their privy parts and who are, therefore, forbidden by a negative precept to marry an Israelite's daughter.
13. This proves that those forbidden by negative precept are subject to levirate marriage no less than to halizah, and thus the question remains, why should an erusin widow be forbidden in levirate marriage to a High Priest?
14. To a High Priest.
15. Lev. XXI, 6. This text adds a positive precept to the negative one of ibid. 14, and for this reason an erusin widow is forbidden in levirate marriage to a High Priest.
16. Marriage with whom is forbidden by a negative precept only and yet may not be superseded by the positive precept of the levirate.
17. Lev. XI, 44cf. p. 119, n. 11.
18. That Lev. XI, 44 provides a text from which a positive precept may be deduced and added to the negative one.
19. Raba's answer thus being rebutted, there remains the question, why should an erusin widow be forbidden in levirate marriage to a High Priest.
20. To a High Priest.
21. Not because those forbidden by a negative precept may not contract levirate marriage. Pentateuchally, in fact, they may; and this is the reason why marital intercourse with such consummates marriage, as stated supra.
22. Why are these forbidden levirate marriage?
23. Such as the precept of the levirate marriage.
24. Supra 17b, infra 240.
25. Everybody knows whether the brother is paternal or only maternal.
26. That there are children, or that there are not. as the case may be.
27. Levirate marriage.
28. I.e., that the brothers must be contemporaries. v. supra.
29. That the levir was, or was not 'dwelling together with the deceased'.
30. That a woman should be incapable of procreation.
31. And there is no need to provide against rare cases.
32. And yet they were forbidden as a preventive measure.
33. In the levirate marriage, Pentateuchally permissible even in the case of one forbidden by a negative precept, the positive precept overriding the negative.
34. In the case of an erusin widow.
35. When only the prohibition under the negative precept remains, the positive precept of the levirate marriage having been fulfilled with the first act of intercourse.
36. Those who are forbidden marriage by a negative precept.
37. Sanh. 19a.
38. That the first act of intercourse is Pentateuchally permitted.
39. Lit., 'it is nothing'.
40. Lit., 'if'.
41. Shab. 133a, Naz. 41a, Men. 56a.
42. The case of the erusin widow of a brother of a High Priest who died after betrothal and before marriage.
43. Which shews that Pentateuchally the positive precept of levirate marriage does supersede the prohibition of marrying a widow. Had that not been the case, the levir's Pentateuchal illegitimate intercourse could not have constituted a legal bond of marriage.
44. Whose deceased husband, the High Priest's brother, died without issue.
45. From the levirate marriage or halizah.
46. As well as herself, who would, as a result, require a divorce but no halizah.