Babylonian Talmud: Tractate Yebamoth

Folio 31a

— Since she is required to perform halizah it is sufficiently known that it¹  is a mere restriction.²  If so, let him, in the case of divorce also,³  state it,⁴  and require her to perform halizah, and it will be sufficiently known that it⁵  Was a mere restriction!⁶  — Were you to say that she was to perform halizah it might also be assumed that she may be taken in levirate marriage.⁷  But here also,⁸  were you to say that she is to perform halizah, she might also be taken in levirate marriage!⁷  -Well, let her be taken in levirate marriage and it will not matter at all since thereby she only retains her former status.⁹

Abaye raised the following objection against him:¹⁰  If the house collapsed upon him¹¹  and upon his brother's daughter.¹²  and it is not known which of them had died first, her rival must perform halizah¹³  but may not contract the levirate marriage.¹⁴  But why? Here also it may be said, 'This woman finds herself in the status of permissibility to all,¹⁵  would you forbid her [marriage on the basis] of a doubt? You must not forbid her [on the basis] of a doubt'! And should you suggest that here also the prohibition is due to a restriction, [it may be retorted that] it is a restriction which may result in a relaxation, for should you say that she is to perform the halizah she might also be taken in levirate marriage! — In respect of divorce which is of frequent occurrence the Rabbis enacted a preventive measure;¹⁶  in respect of the collapse of a house which is not of frequent occurrence the Rabbis did not enact any preventive measure. Or else:¹⁷  In the case of divorce, where the forbidden relative is demonstrably alive, were her rival to be required to perform halizah, it might have been thought that the Rabbis¹⁸  had ascertained that the letter of divorce was a valid document,¹⁹  and the rival might, therefore, be taken in levirate marriage. In the case of a house that has collapsed. however, could the Rabbis¹⁸  have ascertained [who was first killed] in the ruin!²⁰

Have we not learned a similar law in the case of divorce? Surely we learned: If she²¹  stood in a public domain, and he²²  threw it²³  to her, she is divorced if it fell nearer to her; but if nearer to him she is not divorced. If it was equidistant,²⁴  she is divorced and not divorced. And when it was asked, 'What is the practical effect of this',²⁵  [the reply was] that if he was a priest she is forbidden to him;²⁶  and if she is a forbidden relative, her rival must perform the halizah.²⁷  We do not say, however, that were you to rule that she must perform halizah she might also be taken in levirate marriage!²⁸  -Concerning this statement, surely, it was said: Both Rabbah and R. Joseph maintain that here we are dealing with two groups of witnesses, one of which declare that it²³  was nearer to her and the other declares that it²³  was nearer to him, which creates a doubt involving a Pentateuchal [prohibition] — 29 Our Mishnah, however, speaks of one group.³⁰  where the doubt involved is only Rabbinical.³¹

Whence is it proved that our Mishnah speaks of one group? — On analogy with betrothal:³²  As in betrothal only one group is involved so also in divorce³³  one group only could be involved. Whence is it known that in betrothal itself only one group is involved? Is it not possible that it involves two groups of witnesses! — If two groups of witnesses had been involved, she would have been allowed to contract the levirate marriage, and no wrong would have been done.³⁴  Witnesses stand and declare that it³⁵  was nearer to her,³⁶  and you say that she may be taken in levirate marriage and no wrong will be done!³⁷  Furthermore, even where two groups of witnesses are involved the doubt is only Rabbinical, since it might be said 'Put one pair against the other and let the woman retain her original status'!³⁸  This indeed is similar to [the incident with] the estate of a certain lunatic. For a certain lunatic once sold some property. and a pair of witnesses came and declared that he had effected the sale while in a sound state of mind, and another pair came and declared that the sale was effected while he was in a state of lunacy. And R. Ashi said: Put two against two

1. The prohibition to take her in levirate marriage.
2. And is not due to the fact that the betrothal of the forbidden relative was valid.
3. As in the case of betrothal.
4. The case of uncertainty as to whether the letter of divorce rested nearer to the husband or nearer to the wife (v. our Mishnah).
5. The halizah.
6. Seeing that levirate marriage was forbidden to her.
7. And by marrying the rival of a forbidden relative one might become subject to the penalty of kareth.
8. In the case of doubtful betrothal.
9. Of being permitted to marry the levir.
10. Rabbah.
11. Who was childless.
12. To whom he had been married.
13. With the daughter's father, the brother of the deceased. Though the dead woman was his forbidden relative, since it is possible that she had been killed before the man, her rival becomes subject to the obligation of performing halizah.
14. Infra 67b. Since it is also possible that the man was killed first and the rival remained forbidden to the levir as the rival of his daughter.
15. v. supra p. 192, n. 12.
16. That wherever the divorce is doubtful the rival must not perform halizah in order that this performance might not lead also to levirate marriage.
17. It may be replied.
18. The scholars or experts who dealt with the case.
19. And the forbidden relative was no more the wife of the deceased.
20. It would be obvious, therefore, that the requirement of halizah was a mere restriction.
21. The wife.
22. The husband.
23. The letter of divorce.
24. Lit., 'half on half'.
25. The statement that she is divorced and not divorced.
26. A priest must not marry or continue to live with a divorced woman.
27. Git. 78a.
28. Which shews that even in the case of divorce no preventive measure has been enacted.
29. As two witnesses declare that the letter of divorce was nearer to the woman, and as evidence of two witnesses is Pentateuchally valid, the possibility that her rival is no more the rival of a forbidden relative must be taken into consideration, and she cannot be permitted to marry a stranger without previous halizah with the levir.
30. One witness of which is contradicting the other.
31. Hence, in the matter of betrothal, where the rival enjoyed the status of permissibility to the levir, the law that halizah is required in the case of such contradictory evidence could well be applied, since she cannot be deprived of her status by the evidence of the single witness who states that the token of betrothal was nearer to her. In the case of divorce, however, where the rival has the status of permissibility to marry any stranger, the law that halizah is required in the case of contradictory evidence of two single witnesses could not be applied. since the evidence of one witness is not sufficient to deprive her of that right. particularly as it can also be claimed that were she required to perform halizah she might be taken in levirate marriage also.
32. Divorce and betrothal being mentioned side by side in this Mishnah.
33. Had it been included in our Mishnah.
34. Since the evidence of one pair would have been sufficient to confirm the rival in her status of permissibility to the levir. Hence, as levirate marriage was forbidden it cannot be a case of two groups of witnesses.
35. The token of betrothal.
36. Thus presenting a Pentateuchal doubt (cf. supra p. 195. n. 9).
37. This, surely. might result in the breach of a Pentateuchal law!
38. Why. then, even in the case of divorce itself, when the two groups of witnesses cancel each other, should the rival, who was hitherto in a state of permissibility to marry anyone. be required to perform halizah!

and let the land remain in the possession of the lunatic! — Rather, said Abaye. Its friend telleth concerning it:¹  that which was taught in connection with betrothal²  is also to be applied to divorce,³  and what was taught in connection with divorce⁴  is also to be applied to betrothal.

Said Raba to him: If its friend telleth concerning it' what was the object of stating THIS IS?⁵  -Rather, said Raba, whatever is applicable to betrothal⁶  is also to be applied to divorce, but certain points are applicable to divorce,⁷  which cannot be applied to betrothal. And THIS IS⁸  which was mentioned in the case of divorce is not to be taken literally. as THIS IS was used in connection with betrothal⁹  only because it was also used in connection with divorce.

What was THIS IS mentioned in connection with betrothal meant to exclude? — To exclude the question of date which is inapplicable to betrothal.¹⁰  And wherefore was no date ordained to be entered in [documents of] betrothal? This¹¹  may well be satisfactorily explained according to him who holds [that the date is required In a letter of divorce]¹²  on account of the usufruct,¹³  since a betrothed woman has no [need to reclaim] usufruct — 14 According to him, however, who holds [that it¹⁵  was ordained] on account of one's sister's daughter.¹⁶  the insertion of a date should have been ordained [in the case of betrothal also]!¹⁷  — Since some men betroth with money¹⁸  and others betroth with a document the Rabbis did not ordain the inclusion of a date.

Said R. Aha son of R. Joseph to R. Ashi: What about the case of a slave of whom some acquire possession by means of money and others by means of a deed, yet the inclusion of a date has nevertheless been ordained by the Rabbis! — In that case¹⁹  acquisition is generally by means of a deed; here,²⁰  it is generally by means of money. If you prefer I might say: Because it is impossible.²¹  For how should one proceed? Were it²²  to be left with her, she might erase it.²³  Were it²²  to be left with him, it might happen that the betrothed might be his sister's daughter and he would shield her.²⁴  Were it to be left with the witnesses-well, if they remember²⁵  they could come and tender their evidence;²⁶  and if they do not,²⁷  they may sometimes consult the document and then come and tender evidence, while the All Merciful said, 'out of their mouth'²⁸  but not out of their writing. If so, let the same argument²⁹  be applied to divorce also! — There,³⁰  it³¹  comes to save her,³²  here,³³  it³¹  comes to condemn her.³⁴

MISHNAH. IN THE CASE WHERE THREE BROTHERS WERE MARRIED TO THREE WOMEN WHO WERE STRANGERS [TO ONE ANOTHER]. AND ONE OF THEM HAVING DIED³⁵  THE SECOND BROTHER ADDRESSED TO HER³⁶  A MA'AMAR³⁷  AND DIED, BEHOLD, THESE³⁸  MUST PERFORM HALIZAH³⁹  BUT MAY NOT BE TAKEN IN LEVIRATE MARRIAGE; FOR IT IS SAID. AND ONE OF THEM DIED [ETC.] HER HUSBAND'S BROTHER SHALL GO IN UNTO HER.⁴⁰  ONLY SHE WHO IS BOUND TO ONE LEVIR⁴¹  BUT NOT SHE WHO IS BOUND TO TWO LEVIRS.⁴²  R. SIMEON SAID: HE MAY TAKE IN LEVIRATE MARRIAGE WHICHEVER OF THESE HE WISHES⁴³  AND THEN PARTICIPATE IN THE HALIZAH WITH THE OTHER.⁴⁴

GEMARA. If, however, the levirate bond with two levirs⁴⁵  is Pentateuchal,⁴⁶  even halizah should not be required! — But it⁴⁷  is only Rabbinical,⁴⁸  a preventive measure having been enacted against the possible assumption that two sisters-in-law coming from the same house⁴⁹  may both be taken in levirate marriage. Then let one be taken in levirate marriage and the other be required to perform halizah! — A preventive measure has been enacted against the possible assumption that one house was partially built

1. Job XXXVI, 33. [H], (E.V., the noise thereof) is here rendered its friend. The text is taken to imply that passages in close proximity are to be compared to one another and what is applicable to one is to be applied to the other also.
2. The case of uncertainty as to whether the token of betrothal fell nearer to the man or nearer to the woman.
3. When a similar doubt has arisen with reference to a letter of divorce that had been thrown in, similar circumstances.
4. IF A MAN WROTE IN HIS OWN HANDWRITING etc. (V. our Mishnah).
5. Which implies some exclusion.
6. UNCERTAIN WHETHER IT WAS NEARER TO HIM etc. (V. our Mishnah).
7. v. infra for further explanation.
8. Which implies that only that which was specified and no other doubt is applicable, v. supra p. 196, n. 10.
9. Where THIS IS excludes the question of date, which is not applicable to it but to divorce only.
10. The date does not matter in a document whereby betrothal is effected. V. infra.
11. Why no date was required.
12. v. Git. 26b.
13. Which the wife is entitled to reclaim from her husband, in respect of her estate, from the date of her letter of divorce, though the document itself may not have been delivered to her until a much later date. v. Git. 17a.
14. The man who betrothed her having no right whatsoever to the usufruct of her estate until actual marriage has taken place. Cf. Keth. 51a.
15. The insertion of a date 10 a letter of divorce.
16. Who was his wife and had committed adultery. Her uncle, in his desire to protect her, might supply her with an undated letter of divorce which would enable her to escape her due punishment by pleading that the offence had been committed after she had been divorced.
17. Since a betrothed woman also possessing an undated document of betrothal could protect herself against punishment for adultery. by pleading that the offence had been committed prior to the betrothal.
18. Where a date is, of course, inapplicable.
19. A slave.
20. Betrothal.
21. Usefully to insert a date in a deed of betrothal.
22. The deed.
23. The date. V. supra p. 197, n. 12 and cf. p. 197, n. 11.
24. By erasing the date. V. previous note.
25. The date of the betrothal.
26. Of what use, then, is the deed?
27. Remember the date.
28. Cf. Deut. XVII, 6, At the mouth of two witnesses etc., which is taken to imply that evidence must be given from memory (the witnesses' own mouth) and not from information obtained from a written document. V. Git. 71a.
29. Used in respect of betrothal, that there is no safe or proper place to keep the deed.
30. In the case of divorce.
31. The document.
32. Unless she produced it, were she ever to be accused of adultery. she would certainly be condemned since she was known as a married woman. The letter of divorce being her sole protection, it being the sole proof that her married state had ended, she should in her own interest carefully preserve it intact for fear that should she tamper with it, the deed may be declared invalid. (Cf. Tosaf. s.v. [H] a.l.).
33. The case of betrothal.
34. The document is proof that she had passed out of her unmarried state and that henceforward she is forbidden to all men except her betrothed. She (or any friend of hers) is not anxious to preserve such a document; and, should an accusation of adultery ever be brought against her, she could either destroy it or erase the date and claim her previously confirmed status of an unmarried woman. Hence no date was ordained to be included.
35. Without issue.
36. The widow of the deceased brother.
37. v. Glos.
38. The two widows.
39. With the surviving brother.
40. Deut. xxv, 5.
41. Is to be married by him.
42. The first to whom she was bound by the levirate tie and the second to whom she is bound by the ma'amar. A ma'amar of a levir, unlike his levirate marriage. cannot sever the bond between the widow and her deceased husband-the levirate tie.
43. v. supra 19a. If the ma'amar has the validity of marriage, the surviving levir is marrying his second brother's wife, and if a ma'amar is invalid he is marrying either the wife of his first brother or the wife of the second.
44. The levirate marriage of the one cannot exempt the other from the halizah, since it is possible that a ma'amar is invalid and the two widows are consequently of different brothers. He may not marry the two, since a ma'amar may be valid and he would thus be marrying two widows of the same brother.
45. According to the Rabbis of our Mishnah.
46. Since they forbade the levirate marriage in such a case.
47. The levirate bond with two levirs.
48. Pentateuchally a ma'amar is not binding. and the two widows consequently are of two different brothers and may both be married.
49. l.e., widows of the same brother.