Babylonian Talmud: Tractate Yebamoth

Folio 36a

that whosoever is subject to the obligation of levirate marriage is also subject to halizah, and whosoever is not subject to the obligation of the levirate marriage is not subject to halizah!¹  Rather, said Raba, it is this that was meant:²  Where a levir married his yebamah who was found to be pregnant, her rival may not be married, because it is possible that the child would be viable, and marital contact with a pregnant woman is no proper marriage nor is the halizah of a pregnant woman proper halizah, while the child does not bring exemption until he is actually born.³

It was taught in agreement with the view of Raba: Where a levir married his yebamah who was found to be pregnant, her rival may not be married, because it is possible that the child would be viable, and neither marital contact nor halizah but only the child brings exemption; and the child brings exemption only after he is born.

The reason, then,⁴  is because it is possible that the child might be viable, but where the child is not viable her rival is exempt;⁵  does this imply an objection against Resh Lakish?⁶  — Resh Lakish can answer you [that the Baraitha] is thus to be interpreted:⁷  Where a levir married his yebamah who was found to be pregnant, her rival may not be married; since it is possible that the child may not be viable, and the halizah of a pregnant woman is no valid halizah nor is the marital contact with a pregnant woman a proper marriage; and were you to suggest that one should be guided by the majority of women, and the majority of women bear healthy children, [it could be retorted that] a child brings no exemption until he is actually born.⁸

Said R. Eleazar: Is it possible that there should exist [such a ruling as] that of Resh Lakish and that we should not have learnt it in a Mishnah? When he went out he carefully considered the matter and found one. For we learned: If people came to a woman whose husband and rival had gone to a country beyond the sea and told her, 'Your husband is dead',⁹  she may neither be married¹⁰  nor be taken in levirate marriage¹¹  until she has ascertained whether her rival¹²  is pregnant.¹³  One can well understand why she may not be taken in levirate marriage, since it is possible that the child¹⁴  may be viable and [the levir] would thus¹⁵  infringe the Pentateuchal prohibition against [marrying] a brother's wife: but why should she not perform the halizah? It is possible to understand the reason why she must not perform the halizah within the nine months¹⁶  and also contract a marriage within nine months,¹⁶  since such [procedure would naturally be forbidden on account of the] doubt;¹⁷  but let her perform the halizah within the nine months¹⁶  and be married after the nine months!¹⁸  — But even in accordance with your view,¹⁹  let her perform the halizah and be married after the nine months!²⁰  The fact, however, is that nothing may be inferred from this;²¹  for both Abaye b. Abin²²  and R. Hinena b. Abin²²  stated:²³  It is possible that the child²⁴  might be viable²⁵  and you would then subject her to the necessity of an announcement²⁶  in respect of the priesthood.²⁷  — Well, let her be subjected!²⁸  — It may happen that someone would be present at the halizah and not at the announcement,²⁶  and would form the opinion that a haluzah was permitted to a priest.

Said Abaye to him: Was it stated, 'She shall neither perform halizah nor be taken in levirate marriage'? The statement, surely, was, 'She shall neither be married nor be taken in levirate marriage'²⁹  without halizah; if halizah, however, had been performed³⁰  she would indeed have been permitted!³¹

It was taught in agreement with Resh Lakish: Where a levir participated in the halizah with a pregnant woman who subsequently miscarried, she is required to perform halizah with the brothers.

Raba said: The law is in accordance with the views of Resh

!!

If on the other hand, a viable child had been born, exemption took effect at his birth, and subsequent marriage would consequently be lawful. As the Mishnah, however, forbids halizah and marriage even after the nine months, unless definite information about the rival had been received, it must be assumed to represent the view of Resh Lakish who deems a halizah invalid wherever the child is not viable and the ceremony took place during pregnancy. Lakish in the following three rulings.³²  One is the ruling just spoken of. Another is his ruling in connection with the following Mishnah:³³  If a man³⁴  distributed his property verbally³⁵  and gave to one [son] more and to another less, or if he assigned to the firstborn a share equal to that of his brothers,³⁶  his arrangements are valid.³⁷  If, however, he said, 'As an inheritance',³⁸  his instructions are disregarded.³⁹  If he wrote⁴⁰  either at the beginning or the end or the middle, 'as a gift',⁴¹  his instructions are valid.⁴²

1. Supra 3a.
2. By the Baraitha cited.
3. Lit., 'he went forth into the air of the world'.
4. Why the rival is not exempt.
5. On the strength of the marital contact which took place prior to the miscarriage of the child, no repeated contact being necessary.
6. Who does not regard the marital contact of a pregnant woman as a valid marriage
7. Lit., 'thus he taught'.
8. Lit., 'he went forth unto the air of the world'.
9. And has left no issue.
10. To a stranger.
11. By the levir.
12. Who went together with her husband.
13. Infra 119a. Only if she learns that her rival is not pregnant may she contract the levirate marriage.
14. That might be born from the rival.
15. By marrying the widow of his brother who did not die without issue.
16. After the death of her husband.
17. It being uncertain whether the child would be viable or not. Should he be viable, neither the halizah nor the marriage would be valid, while exemption on his account would not come into force until his actual birth.
18. This should be permitted according to the view of R. Johanan at all events: If the rival had been pregnant and miscarried or had not been pregnant at all, the halizah was, surely, valid.
19. That halizah is forbidden because of the possibility that the rival was pregnant at the time halizah took place.
20. When all doubt as to pregnancy would have been removed. Why, then, has it been stated that she may not marry until she had ascertained (even though many years have passed), whether her rival had been pregnant.
21. Mishnah. Lit., 'but outside of that'. No support to the view of Resh Lakish may be derived from it.
22. Cur. edd., 'Abaye'.
23. The reason why no halizah may take place.
24. Of the rival.
25. The birth of a viable child renders the halizah invalid and the woman is consequently permitted to marry a priest.
26. That the halizah was unnecessary and therefore invalid.
27. V. supra n. 7.
28. Lit., 'required'.
29. [Rashi apparently omits this and reads: 'She shall neither be married' without halizah].
30. Even within nine months.
31. To marry at the end of that period; the Baraitha will then afford no support to Resh Lakish.
32. B.B. 129b, Hul. 77a.
33. Lit., 'because we learned'.
34. Lying on his death-bed.
35. I.e., explicitly intimated his desire and did not die intestate (v. Rashi, a.l.).
36. Lit., 'he made the firstborn equal to them', though Biblically he is entitled to a double portion.
37. Lit., 'his words stand', because a man is entitled to dispose of his property, as a gift, in any manner that may appeal to him.
38. I.e., if he distributed the shares as portions of an inheritance and not as gifts.
39. Lit., 'he said nothing'. One has no right to give instructions which are contrary to the law of the Torah which entitled every son to a portion and the firstborn to a double portion in the father's estate.
40. In disposing of his property in a written will.
41. I.e., used an expression denoting 'gift', even though it was accompanied by one denoting 'inheritance'. If he wrote, for instance, let a certain field (a) be presented to X that he may inherit it (beginning), or (b) inherited by X and be presented to him that he may inherit it (middle), or (c) be inherited by X and be presented to him (end).
42. B.B. 126b. V. supra note 6. So long as the expression of 'gift' was used, the other expression of 'inheritance' that may have been coupled with it, does not in any way affect the validity of the testator's instructions.

And [in connection with this] Resh Lakish stated: No possession is ever acquired,¹  unless the testator had said, 'Let X and Y inherit this and that particular field which I have assigned to them as a gift, so that they may inherit them'.²  And the third³  is his ruling in connection with the following Mishnah:⁴  If a man assigned all his estate, in writing, to his son⁵  [to be his]⁶  after his⁷  death, the father may not sell it⁸  because it is assigned to the son, and the son may not sell it because it is in the possession of the father. If the father sold the estate, the sale is valid until his death.⁹  If the son sold it, the buyer has no claim whatsoever upon it until the father's death.¹⁰  And it was stated: If the son sold the estate¹¹  during the lifetime of his father, and died while his father was still alive, R. Johanan said: The buyer does not acquire ownership;¹²  and Resh Lakish said: The buyer does acquire ownership.¹³  R. Johanan said that 'the buyer does not acquire ownership', because possession of usufruct is like possession of the capital;¹⁴  and Resh Lakish said that 'the buyer does acquire ownership', because possession of usufruct is not like possession of the capital.¹⁵

BUT IF THE CHILD IS NOT VIABLE etc. A Tanna taught: It has been said in the name of R. Eliezer that¹⁶  he must put her out by means of a letter of divorce.¹⁷

Said Raba: R. Meir and R. Eliezer taught the same law.¹⁸  R. Eliezer, in the ruling just mentioned, R. Meir [in the following Baraitha] wherein it was taught: A man shall not marry the pregnant, or nursing wife of another;¹⁹  and if he married, he must put her out and never remarry her; so R. Meir. But the Sages said: He shall let her go.²⁰  and at the proper time²¹  he may marry her again.²²

Abaye said to him:²³  How do you arrive at such a conclusion which may possibly be wrong?²⁴  R. Eliezer's ruling might extend to the present case²⁵  only because the levir is encroaching²⁶  upon the prohibition of 'brother's wife', which is Pentateuchal,²⁷  but there,²⁸  where the prohibition is only Rabbinical,²⁹  he may hold the same view as the Rabbis. Alternatively, it is possible that R. Meir's ruling extends only to that case because the prohibition is Rabbinical,²⁹  and the Sages have given more force to their provisions than to those which are Pentateuchal,³⁰  but not to the case here,³¹  where the prohibition is Pentateuchal,²⁶  and people as a rule keep away from it.³²

Raba said: Even according to the ruling of the Rabbis³³  he must let her go from him by means of a letter of divorce.³⁴  Said Mar Zutra: This may also be deduced, since the expression used was 'he shall put her out'³⁵  and not 'he shall let her part'.³⁶  This proves it.

R. Ashi said to R. Hoshaia son of R. Idi: 'Elsewhere it was taught.³⁷  "R. Simeon b. Gamaliel said: Any human child³⁸  that survived for thirty days cannot be regarded as a miscarriage".³⁹  Had he not lived so long,⁴⁰  however, he would have been a doubtful case.⁴¹  But it was also stated: Where he⁴²  died within thirty days⁴³  and she⁴⁴  was subsequently⁴⁵  betrothed,⁴⁶  Rabina said in the name of Raba that if she⁴⁴  was the wife of an Israelite⁴⁷  she must perform the halizah⁴⁸  and if she was the wife of a priest⁴⁹  she must not perform the halizah.⁵⁰  R. Mesharsheya⁵¹  said in the name of Raba: The one as well as the other must perform the halizah. Said Rabina to R. Mesharsheya:⁵¹

1. Where two fields were given to two persons and the expression of 'inheritance was used together with that of 'gift'.
2. Both acquire possession of the respective fields because the testator had used the expression, 'which I have assigned to them as a gift', implying that the gift was made before it was assigned as an 'inheritance' (v. R. Gershom, B.B. 129a).
3. Lit., 'and the other', the third ruling of Resh Lakish, which is an accepted halachah.
4. Lit., 'because we learned'.
5. Inserting the formula 'From this day and after my death'. The law that follows applies also to a gift made by any other person.
6. The sons.
7. The testator's.
8. Either the land or its produce.
9. Lit., 'sold until he dies'. Until then only may the buyer enjoy its usufruct.
10. B.K. 88b, B.B. 1362.
11. Assigned to him by his father for possession after his death.
12. Even after the father's death, since the estate has never come into the son's possession.
13. After the death of the father, as the representative of the son, who, were he alive, would have been entitled to the inheritance.
14. Since the usufruct was in the ownership of the father, the capital, i.e., the soil, is also regarded as being in his possession, and the son, therefore, during the lifetime of his father is not entitled to transfer it to the buyer.
15. B.K. l.c., B.B. 136af. The soil, therefore, was the undisputed property of the son who, consequently. was fully entitled to transfer it to the buyer.
16. Contrary to the law of our Mishnah which allows the levir to continue his connubial association with his sister-in-law wherever the child is not viable.
17. Though the death of the child has proved retrospectively that the levirate marriage was lawful, divorce is imposed upon such a union as a penalty for contracting it at a time when, owing to the uncertainty of the result of the pregnancy, it was of doubtful legality.
18. Lit., 'said one word', that the penalty of divorce is imposed upon any union the legality of which was doubtful at the time the marriage was contracted.
19. Though she is now a widow or divorced.
20. V. infra for meaning.
21. Lit., 'and when his time to marry arrives', i.e. at the end of the period of twenty-four months allowed for the nursing of a child.
22. Sot. 262.
23. Raba.
24. Lit., 'from what? perhaps it is not (so)'.
25. Lit., 'R. Eliezer did not so far say (his ruling) here'.
26. It being possible that the child would be viable.
27. For such a serious offence a penalty is rightly imposed.
28. Marriage with an expectant. or nursing mother.
29. Biblically one need not wait twenty-four months before marrying her.
30. As people might be lax in the observance of a Rabbinical law it was necessary to impose a penalty for its non-observance.
31. Marriage with an expectant yebamah.
32. Or 'her', i.e., from marrying an expectant yebamah. No penalty. therefore, need be imposed upon an occasional offender.
33. Who permit marriage after the period of twenty-four months had elapsed.
34. Mere separation is not enough.
35. [H] Hif. of [H] 'to go out'.
36. [H] Hif. of [H] 'to separate'.
37. Cf. Tosaf. Hul. 87b, s.v. ib, and Bek. 49a s.v. [H]. Cur. edd., 'we learned'.
38. Of doubtful premature birth. Lit., 'among man', opp. to cattle mentioned in the final clause.
39. Tosef. Shab. XVI, Shab. 135b, Nid. 44b, infra 80b; and consequently exempts his mother from levirate marriage and halizah. In the case of a mature birth (cf. prev. note) the child exempts his mother on the first day of his birth. (V. Nid. 43b).
40. [Rashi: By dying a natural death; Tosaf. If he was killed; for if he died a natural death within thirty days even the Rabbis would regard him as a miscarriage, v. Tosaf, s.v. [H].
41. And his mother would have had to perform halizah only, but would not have been allowed to contract the levirate marriage.
42. The child of a sister-in-law whose husband had died without having left any other issue.
43. Of his birth.
44. His mother, the widow of his deceased father.
45. Lit., 'stood up.'
46. To a stranger; believing that the birth of the child was sufficient to exempt her from the obligations of the levirate marriage and the halizah.
47. I.e., if the man who betrothed her was an Israelite who may marry a haluzah.
48. With the levir.
49. Cf. supra 8. A priest may not marry a haluzah.
50. Were she to perform it. her husband could not subsequently be allowed to live with her. Hence she is granted exemption from halizah by virtue of the child's birth alone.
51. Var. lec. 'Sherabya', v. Shab. 136b.