Babylonian Talmud: Tractate Yebamoth

Folio 41a

— The Rabbis have enacted a preventive measure¹  in respect of her who accompanies the haluzah to court;²  in the case, however, of her who does not accompany her to court³  the Rabbis enacted no preventive measure.⁴

MISHNAH. WHERE HE PARTICIPATED IN A HALIZAH WITH HIS DECEASED BROTHER'S WIFE, AND HIS BROTHER MARRIED HER SISTER AND DIED,⁵  THE WIDOW⁶  MUST PERFORM HALIZAH BUT MAY NOT BE TAKEN IN LEVIRATE MARRIAGE.⁷

SIMILARLY⁸  WHERE A MAN DIVORCED HIS WIFE AND HIS BROTHER MARRIED HER SISTER AND DIED⁵  THE WIDOW IS EXEMPT.⁹

IF A BROTHER OF THE LEVIR HAD BETROTHED THE SISTER OF THE WIDOW WHO WAS AWAITING THE LEVIR S DECISION, HE IS TOLD, SO IT HAS BEEN STATED IN THE NAME OF R. JUDAH B. BATHYRA, WAIT¹⁰  UNTIL YOUR BROTHER HAS ACTED'.¹¹  IF HIS BROTHER HAS PARTICIPATED WITH THE WIDOW IN THE HALIZAH OR CONTRACTED WITH HER THE LEVIRATE MARRIAGE, HE MAY MARRY HIS [BETROTHED] WIFE. IF THE SISTER-IN-LAW DIED HE MAY ALSO MARRY HIS [BETROTHED] WIFE. BUT IF THE LEVIR DIED, HE¹²  MUST RELEASE HIS [BETROTHED] WIFE BY A LETTER OF DIVORCE AND HIS BROTHER'S WIFE BY HALIZAH.¹³

GEMARA. What [is meant by] SIMILARLY?¹⁴  — Read: BUT WHERE A MAN DIVORCED.

Resh Lakish said: Here¹⁵  it was taught by Rabbi¹⁶  that [the prohibition to marry the] sister of a divorced wife is pentateuchal [and that of] the sister of a haluzah is Rabbinical.

HAD BETROTHED [THE SISTER OF THE] WIDOW WHO WAS AWAITING THE LEVIR'S DECISION etc. Samuel said: The halachah is in agreement with the view of R. Judah b. Bathyra.¹⁷

The question was raised: If his wife¹⁸  died may he marry his sister-in-law?¹⁹  — Both Rab and R. Hanina stated: If his wife died he is permitted to marry his sister-in-law. But both Samuel and R. Assi stated: If his wife died he is forbidden to marry his sister-in-law. Said Raba: What is Rab's reason? — Because she is a deceased brother's wife who was permitted²⁰  then forbidden²¹  and then again permitted²²  and who consequently reverts to her first state of permissibility.

R. Hamnuna raised an objection: If two of three brothers were married to two sisters and the third was unmarried, and when one of the sisters' husbands died the unmarried brother addressed to the widow a ma'amar, and then the second brother²³  died,²⁴  and after him his wife also died,²⁵  that sister-in-law must perform halizah but may not be taken in levirate marriage.²⁶  But why?²⁷  Let her be regarded²⁸  as a deceased brother's wife who was permitted²⁹  then forbidden,³⁰  and then again permitted²²  who reverts to her former state of permissibility!³¹  He remained silent. After the other went out he said: I should have told³²  him that it³³  represents the view of R. Eleazar who maintains that once she has been forbidden to him for one moment she is forbidden to him for ever! Subsequently he remarked: It might be contended that R. Eleazar held that view only where she was not fit³⁴  at the time she became subject to the levirate marriage;³⁵  did he express such an opinion, however, in the case where she was fit³⁴  at the time she became subject to the levirate marriage?³⁶  Subsequently however, he said: Yes,³⁷  for, surely, it was taught: R. Eleazar said: If his³⁸  yebamah died, his wife is permitted to him; if his wife died, that yebamah must perform halizah but may not be taken in levirate marriage.

Must it then be assumed that Samuel and R. Assi are of the same opinion as R. Eleazar?³⁹  — The may be said to be in agreement even with the Rabbis. For the Rabbis differed from R. Eleazar⁴⁰  only because from the time she became subject to the levirate marriage and onward she was no longer forbidden to him.⁴¹  Here,⁴²  however, where she was so forbidden⁴³  even the Rabbis agree.⁴⁴

MISHNAH. THE DECEASED BROTHER'S WIFE⁴⁵  SHALL NEITHER PERFORM THE HALIZAH NOR CONTRACT LEVIRATE MARRIAGE BEFORE THREE MONTHS HAVE PASSED.⁴⁶  SIMILARLY ALL OTHER WOMEN⁴⁷  SHALL BE NEITHER BETROTHED NOR MARRIED BEFORE THREE MONTHS HAVE PASSED⁴⁶  WHETHER THEY WERE VIRGINS OR NON-VIRGINS, WHETHER DIVORCEES OR WIDOWS,⁴⁸  WHETHER MARRIED OR BETROTHED.

R. JUDAH SAID: THOSE WHO WERE MARRIED MAY BE BETROTHED [FORTHWITH], AND THOSE WHO WERE BETROTHED MAY EVEN BE MARRIED [FORTHWITH], WITH THE EXCEPTION OF THE BETROTHED WOMEN IN JUDAEA, BECAUSE THERE THE BRIDEGROOM WAS TOO INTIMATE⁴⁹  WITH HIS BRIDE.⁵⁰

R. JOSE SAID: ALL [MARRIED] WOMEN⁵¹  MAY BE BETROTHED [FORTHWITH] EXCEPTING THE WIDOW⁵²

1. The prohibition to marry the rival of the relative of one's Haluzah.
2. I.e., her sister whom she takes with her to court when she goes to perform the halizah. The public, not being aware which of the sisters is the haluzah, might subsequently mistake the one for the other. Hence the rival of the sister was forbidden to the levir who participated in the halizah in order that people might not think that he married the rival of the haluzah herself.
3. The widow does not take her rival with her when she goes to court to perform halizah.
4. Since no one is likely to mistake the rival for the haluzah. Hence the law that the relative of the rival is permitted.
5. Without issue.
6. Being the sister of a haluzah.
7. The sister of a haluzah is (a) Pentateuchally permitted but (b) Rabbinically forbidden. Because of (a) she is subjected to the levirate bond and requires halizah, and because of (b) she is forbidden to contract the levirate marriage.
8. This expression is discussed in the Gemara infra.
9. From the halizah as well as from the levirate marriage. The sister of a divorced wife is Pentateuchally forbidden to the divorcee.
10. With the consummation of the marriage.
11. I.e., until he had either contracted the levirate marriage or submitted to halizah. Before such action the sister of the widow is forbidden to him, as to all the other brothers, as the sister of their zekukah.
12. Being the only surviving brother and, consequently, the only one to whom the widow is subject.
13. Being the sister of his divorced wife she is not permitted to contract with him the levirate marriage. (Cf. supra p. 264, n. 11.
14. Seeing that the clause introduced by this expression is not at all similar to the previous one.
15. In the first two clauses of our Mishnah,
16. R. Judah the Prince, Redactor of the Mishnah.
17. That the levirate bond between the widow and all the surviving brothers remains in force until one of the brothers has contracted the levirate marriage or has submitted to halizah.
18. The sister of the widow of his deceased brother.
19. I.e., the widow whose deceased sister is now no more his wife.
20. When her husband died without issue.
21. When the brother had betrothed her sister.
22. When her sister died.
23. Of the two who married the two sisters.
24. And his widow, the sister of the first widow to whom the ma'amar had been addressed by the third brother, had thus come under the levirate bond and consequently caused her sister's prohibition to the third brother as 'the sister of his zekukah'.
25. When the first widow, the surviving sister, is no more the 'sister of his zekukah'.
26. Cf. supra 29a.
27. If Rab's reason as given by Raba is to be accepted, why should not the widow, now that her sister had died, be permitted to enter into levirate marriage?
28. On the analogy of Rab's reasoning.
29. When her husband died and the unmarried brother addressed a ma'amar to her.
30. When the second brother, the husband of the other sister, died.
31. Why then was it stated that she may not contract the levirate marriage and that she is restricted to halizah only?
32. Lit., 'why did I not tell'.
33. The Baraitha cited by R. Hamnuna.
34. To be married by the levir.
35. R. Eleazar's view was expressed in connection with a woman who had been divorced (and had thus become forbidden to the levir as the 'divorcee of his brother'), and then was remarried, and finally, on the death of her husband, became subject to the levir as the wife of his deceased childless brother (v. infra 108bf). In this case, when the widow became subject to the levirate obligations, she had been already, for a time, forbidden to the levir as the 'divorcee of his brother'.
36. As is the case in the Baraitha cited by R. Hamnuna. The prohibition there arose after she had become subject to the obligations of the levirate.
37. I.e., R. Eleazar forbids levirate marriage for ever, if the widow was unfit for such a marriage for one single moment, even if at the time when she became subject to the levirate obligations she (the widow) was quite fit to contract the carriage.
38. The levir's, who betrothed the sister of his yebamah.
39. Who is in a minority, against that of the Rabbis. Would they agree with a minority against the ruling of the majority?
40. In the case of a woman who had been divorced and then remarried and then became subject to the levirate obligation, infra 108b. Cf. supra p. 266, n. 16.
41. The prohibition having ceased with the death of her husband when the obligation of the levirate had arisen.
42. The case cited by R. Hamnuna.
43. Because after she became subject to the levirate obligations he was for a time, owing to the death of his second brother, forbidden to him as the sister of his zekukah.
44. That only halizah must be performed, levirate marriage being forbidden.
45. Whose husband died without issue, and who became subject to the levirate obligations.
46. From the date of her husband's death. The reasons are discussed in the Gemara infra.
47. Whose husbands have died.
48. The distinctions between these classes are discussed in the Gemara.
49. Lit., 'his heart is bold', and cohabitation might have taken place.
50. Cf. Keth. 12a,
51. Whose husbands have died.
52. Who must allow a period of thirty days to pass.

OWING TO HER MOURNING.¹

GEMARA. It is quite reasonable that she²  shall not be taken [forthwith] in levirate marriage, since the child [whom she might bear] may be viable,³  and the levir would thus infringe the prohibition of marrying a brother's wife, which is Pentateuchal; but why should she not [forthwith] perform the halizah?⁴  Does this,⁵  then, present an objection against R. Johanan who said that the halizah of a pregnant woman is deemed to be a valid halizah?⁶  But has not an objection against R. Johanan once been raised?⁷  — [The question is whether] it may be assumed that an objection arises from here also?⁸  — No; here, the reason⁹  is this: The child might be viable;¹⁰  and you would in consequence subject her to the need for an announcement¹¹  in respect of the priesthood.¹²  Well, let her be subjected!¹³  — It may happen that some people would be present at the halizah but would not be present at the announcement, and they would consider her ineligible to marry a priest.

This quite satisfactorily explains the case of a widow; what can be said, however, in respect of a divorced woman?¹⁴  — Because she would thereby¹⁵  lose her maintenance.¹⁶  This provides a quite satisfactory explanation in the case of a married woman; what can be said, however, in respect of a betrothed divorcee?¹⁷  — The reason¹⁸  is rather the ruling of¹⁹  R. Jose. For it was taught: A man once appeared before R. Jose and said to him; 'May halizah be performed within three months'? The master replied, 'She must not perform the halizah'. — 'Let her perform the halizah! What would she lose'?²⁰  Thereupon he recited for him this Scriptural text: If the man like not,²¹  [implying] that if he likes he may contract the levirate marriage; whosoever may go up²²  to contract the levirate marriage may also go up to perform the halizah etc.²³

R. Hinena raised an objection: In doubtful cases halizah is performed and no levirate marriage may be contracted. Now, what is meant by 'doubtful cases'? If it be assumed to mean doubtful betrothal;²⁴  why, indeed, should no levirate marriage be contracted? Let the widow be taken in levirate marriage since no objection could possibly be raised!²⁵  Consequently,²⁶  the doubt must consist in the betrothal of two sisters when the man is uncertain which of them he betrothed;²⁷  and yet it was stated that halizah was to be performed!²⁸  — How now! There,²⁹  if Elijah were to come and point out the sister that was betrothed, she would be eligible for both halizah and levirate marriage;³⁰  here,³¹  however, were Elijah to come and declare that the widow was not pregnant, would anyone heed him and allow her to contract the levirate marriage? Surely even a minor who is incapable of pregnancy must wait three months!³²

Our Rabbis taught: A yebamah³³  is maintained during the first three months out of the estate of her husband. Subsequently³⁴  she is not to be maintained either out of the estate of her husband or out of that of the levir. If, however, the levir appeared in court³⁵  and then absconded, she is maintained out of the estate of the levir. If she became subject to a levir who was a minor she receives nothing from the levir. Does she, however, [receive her maintenance] from her husband's estate? — On this question, R. Aha and Rabina are in dispute. One holds that she receives and the other holds that she does not. And the law is that she receives nothing; for her penalty comes from heaven.

Our Rabbis learned: A yebamah,³⁶  with whom the brothers had participated in halizah within the three months, must wait three months.³⁷

1. Which terminates on the thirtieth day.
2. The deceased brother's wife spoken of in our Mishnah.
3. And the levirate obligations would thereby be removed.
4. Marriage with an outsider could thus take place after three months, if she is found to be without child or if she miscarried.
5. The implication that halizah is forbidden because it is possible that the woman will miscarry after the ceremony and, believing the halizah to have been valid, would remarry without performing the ceremony again while, in fact, the law is that the halizah of a pregnant woman is not valid.
6. Supra 35b.
7. V. n. 11; why then doubt it?
8. So that if the first objection should ever be removed the second would still remain.
9. Why halizah also must be postponed until three months have passed.
10. And his birth would render the halizah invalid, and his mother would consequently be permitted to marry a priest whom, as a haluzah, she would not have been allowed to marry.
11. That the halizah was invalid and that the widow is eligible to marry a priest.
12. V. p. 268 n. 15.
13. To the necessary announcement. What loss could such an announcement cause her?
14. I.e., who had been a divorcee prior to her marriage with the deceased brother. Having been divorced once, she is for ever ineligible to marry a priest, even though she were no haluzah. Why, then, should she be forbidden to perform the halizah forthwith?
15. By performing the halizah before the three months have passed.
16. Which she receives from her deceased husband's estate for a period of three months. This would cease with the performance of the halizah. [On this view the Mishnah does not state a prohibition but a piece of sound advice (Tosaf.)]
17. A woman who has been betrothed whilst she was a divorcee and became a widow before the marriage took place. As a betrothed she is not entitled to maintenance from the dead man's estate, and as a divorcee she is not eligible to marry a priest. Why, then, should she not be allowed forthwith to perform the halizah?
18. V. supra p. 268, n. 14.
19. Lit., 'because of'.
20. Lit., 'and what in it'.
21. Deut. XXV, 7.
22. Sc. to the gate (cf. loc. cit.) i.e., to court.
23. 'And whosoever may not go up to contract the levirate marriage may not go up to perform the halizah' (v. supra 20a, 36a, infra 44a). Since the widow may not contract levirate marriage within three months, she may not perform halizah either. This,' however, presents no objection to R. Johanan's ruling since, though it is improper to arrange a halizah within the three months, if halizah had actually taken place it is valid.
24. Such as are dealt with in the Mishnah and subsequent Gemara supra 30b.
25. Lit., 'and there is nothing in it'. If the widow's betrothal by the deceased was valid, the levirate marriage is also valid; and if it was not valid, the so-called widow is in reality an unmarried woman and may be married as a stranger.
26. Lit., 'but not?'
27. And he died without issue.
28. Though no levirate marriage may be contracted owing to the doubt in the case of each sister that she might be the 'sister of a zekukah'. How, then, could it be said that halizah may be performed only where levirate marriage also is possible?
29. Where it is uncertain which sister was betrothed.
30. Each sister may consequently be regarded as virtually fit for the levirate marriage.
31. A widow within the first three months after her husband's death.
32. As levirate marriage is thus absolutely forbidden for the time being, the halizah also must be postponed until the time when levirate marriage would be permitted. [Where, however, the prohibition to contract levirate marriage is absolute, as, for example, in the case of a sister of a haluzah (supra 41a) halizah may be performed (Rashi).]
33. Who awaits halizah or levirate marriage which is not to take place before three months have passed.
34. Lit., 'from now and onwards'.
35. In response to the widow's claim that he should contract levirate marriage or submit to halizah.
36. V. p. 270, n. 10.
37. Dating from her husband's death, and may contract marriage after that period.