Babylonian Talmud: Tractate Yebamoth

Folio 44a

IF ONE OF THESE, HOWEVER, WAS ELIGIBLE¹  AND THE OTHER INELIGIBLE,¹  THEN IF HE²  SUBMITS TO HALIZAH IT MUST BE FROM HER WHO IS INELIGIBLE,³  AND IF HE CONTRACTS LEVIRATE MARRIAGE IT MAY BE EVEN WITH HER WHO IS ELIGIBLE.

GEMARA. FOUR BROTHERS? Is this conceivable!⁴  — Read, FOUR of the BROTHERS.

MAY. And is he allowed?⁵  Surely it was taught: Then the elder's of his city shall call him,⁶  'they' but not their representative; 'and speak unto him'⁶  teaches that he is given suitable advice. If he,²  for instance, was young and she⁷  old, or if he was old and she was young, he is told, 'What would you with⁸  a young woman'? or 'What would you with an old woman'? 'Go to one who is [of the same age] as yourself and create no strife in your house'!⁹  — This is applicable to that case only where he can afford it.¹⁰  If so, even more wives also!¹¹  — Sound advice was given: Only four but no more, so that each may receive one marital visit a month.¹²

WHERE A MAN WHO WAS MARRIED etc. Let him contract levirate marriage with both! — R. Hiyya b. Abba replied in the name of R. Johanan: Scripture stated, That doth not build up his brother's house,¹³  he builds one house¹⁴  but does not build two houses. Then let him submit to halizah from both of them! — Mar Zutra b. Tobia replied: Scripture stated, The house of him who had his shoe drawn off,¹⁵  he submits to the drawing off of the shoe in respect of one house but must not submit to the drawing off of the shoe in respect of two houses. Then let him submit to halizah¹⁶  from one and contract levirate marriage with the other! — Scripture stated, That doth not build,¹⁷  as he has not built¹⁸  he must never again build. Then let him contract levirate marriage with one and submit to halizah from the other! — Scripture states, If he like not,¹⁹  if, however, he liked, he may contract levirate marriage; whosoever may go up²⁰  to contract levirate marriage, may also go up to perform halizah and whosoever may not go up¹⁷  to contract levirate marriage²¹  may not go up to perform halizah. Furthermore, in order that it be not said that the same house²²  is partially 'built' and partially 'drawn off'. But let them say! — If he had first contracted levirate marriage and then submitted to halizah this would have been so indeed;²³  it is possible, however, that he may submit to halizah and subsequently contract levirate marriage and thus place himself under the prohibition of that doth not build.²⁴

Might it be suggested that where there is only one,²⁵  the law of the levirate marriage shall be observed, but that where there are two, the law of levirate marriage shall not be observed! — If so, what need was there for the All Merciful to prohibit marriage with the rival of a forbidden relative? If any two rivals, it has been said, are not both subject to halizah and the levirate marriage, was there any need [to mention the exemption of] a rival of a forbidden relative! Why not? It is certainly needed! For it might have been assumed that the forbidden relative stands excluded, and her rival may, therefore, be taken in levirate marriage, hence it was taught that she also was forbidden! — But in fact [this is the proper explanation:] The repetition of his brother's wife²⁶  widened the scope.²⁷

IF ONE OF THEM, HOWEVER, WAS ELIGIBLE. Said R. Joseph: Here²⁸  it was taught by Rabbi²⁹  that a man should not pour the water out of his cistern while others may require it.³⁰

MISHNAH. A MAN WHO REMARRIED HIS DIVORCED WIFE,³¹  OR MARRIED HIS HALUZAH, OR MARRIED THE RELATIVE OF HIS HALUZAH MUST DIVORCE HER, AND THE CHILD³²  IS A BASTARD; THESE ARE THE WORDS OF R. AKIBA. BUT THE SAGES SAID: THE CHILD IS NOT A BASTARD. THEY AGREE, HOWEVER, THAT WHERE A MAN MARRIED THE RELATIVE OF HIS DIVORCEE THE CHILD³²  IS A BASTARD.

GEMARA. Does R. Akiba hold the view that the child of a man who MARRIED THE RELATIVE OF HIS HALUZAH is a bastard? Surely Resh Lakish stated: Here³³  it was taught by Rabbi³⁴  [that the prohibition to marry] the sister of a divorced wife is Pentateuchal and that that of the sister of a haluzah is Rabbinical!³⁵  — Read,³⁶  THE RELATIVE OF HIS divorcee. This view may also logically be supported. For it was stated in the final clause, THEY AGREE, HOWEVER, THAT WHEN A MAN MARRIED THE RELATIVE OF HIS DIVORCEE THE CHILD IS A BASTARD. Now, if you grant that her case³⁷  was under discussion one can well see the reason why the expression of THEY AGREE had been used; if you contend, however, that her case³⁷  was not under discussion what is the purport of THEY AGREE?³⁸

Is it not possible that we were informed³⁹  that the [offspring of a union] of those who are subject to the penalty of kareth is a bastard?⁴⁰  — This surely is taught below: 'Who is a bastard? [The offspring of a union with] any consanguineous relative with whom cohabitation is forbidden; so R. Akiba. Simeon⁴¹  the Temanite said: [The offspring of any union] the penalty for which is kareth at the hands of heaven. And the halachah is in agreement with his view.⁴²  But is it not possible that the Tanna⁴³  intended to indicate by his anonymous statement that the halachah is according to Simeon⁴¹  the Temanite?⁴⁴  — If so, he should have stated, 'Others who are subject to the penalty of kareth', why then [specify] THE RELATIVE OF HIS DIVORCEE? Consequently it must he inferred that this case⁴⁵  was under discussion. But is it not indeed possible to maintain that it⁴⁵  was not under discussion, but because THE MAN WHO REMARRIED HIS DIVORCED WIFE OR MARRIED HIS HALUZAH OR THE RELATIVE OF HIS HALUZAH was spoken of,⁴⁶  he also introduced THE RELATIVE OF his divorcee'?⁴⁷

Would consequently [the offspring of a union with] the RELATIVE OF HIS HALUZAH, according to R. Akiba,⁴⁸  be a bastard!⁴⁹  — R. Hiyya b. Abba replied in the name of R. Johanan, This is R. Akiba's reason: Because Scripture stated, The house of him that had his shoe drawn off;⁵⁰  Scripture thus called it his house.⁵¹

R. Joseph stated in the name of R. Simeon b. Rabbi: All agree that, where a man remarried his divorced wife,

1. To marry a priest. V. Lev. XXI, 7.
2. The levir.
3. So that the halizah shall not disqualify the eligible widow from marrying a priest.
4. If there were only four brothers and all of them died, how could levirate marriage take place?
5. To marry four wives.
6. Deut. XXV, 8.
7. The widow, his sister-in-law.
8. Lit., 'what to thee at'.
9. Infra 101b. Similarly in the case of our Mishnah also the levir should have been advised not to undertake the responsibility of maintaining four wives.
10. When he possesses the means.
11. Should be allowed. Why then were FOUR only mentioned.
12. Once a week, on Friday evenings, is the time when scholars in moderate health should pay their marital visits (Keth 62b). More than four wives would reduce each one's visits to less than one per month.
13. Deut. XXV, 9: emphasis on 'house' (sing.).
14. I.e., marries one widow.
15. E.V., loosed, ibid. 10, emphasis on 'house'.
16. For this insertion v. BaH a.l.
17. Ibid. 9, emphasis on 'not build'.
18. I.e., did not contract levirate marriage.
19. Ibid. 7.
20. Sc. to the gale (ibid.), i.e., the court.
21. As is the case with the rival who may not contract levirate marriage, for the reason given supra, 'he builds one house but does not build two houses'.
22. Of the one brother.
23. What people might say about 'partially built' etc. would not have mattered.
24. V. supra note 5, 'as he has not built he must never again build'.
25. Widow.
26. Deut. XXV, 7.
27. Indicating that even where there are two rivals the precept of levirate marriage is to be observed.
28. By the instruction that halizah is to be performed by the ineligible, and not by the eligible widow.
29. R. Judah the Prince, Redactor of the Mishnah.
30. Though the levir himself would lose nothing by disqualifying the widow from marriage with a priest, he must not be the cause of her disqualification out of consideration for a priest who might wish to marry her.
31. After she had been married to another man.
32. The offspring of any such union.
33. In the Mishnah supra 41a to which Resh Lakish refers.
34. The Redactor of the Mishnah.
35. Supra 40b, 41a. The offspring of a union that is only Rabbinically forbidden would not be a bastard.
36. In R. Akiba's statement in our Mishnah.
37. That of the relative of a divorcee.
38. One does not AGREE in respect of a case that never was in dispute!
39. By the use of the expression AGREE.
40. I.e., the Rabbis AGREE in this case because it involves kareth, though they maintain that the offspring of those who are subject to the penalty of flogging only is not a bastard, AGREE would consequently provide no proof that R. Akiba spoke of the relative of a divorcee!
41. Cur. edd. add 'R'.
42. Infra 49a. The halachah must obviously be in agreement with the Rabbis who form the majority. Consequently there was no need for the Rabbis to state the same halachah in our Mishnah also. THEY AGREE must, therefore, imply that R. Akiba also spoke of the relative of a divorcee.
43. Of our Mishnah.
44. Hence the repetition in Our Mishnah of the one infra 49a. Cf. supra n. 5 second clause.
45. The case of the relative of one's divorcee.
46. And on which the Rabbis disagreed with R. Akiba. In the case of the RELATIVE OF HIS HALUZAH, however, R. Akiba, it might still be contended, regards the child as a bastard.
47. In whose case the Rabbis agree with R. Akiba.
48. Since the expression RELATIVE OF HIS HALUZAH in R. Akiba's statement is not amended to 'RELATIVE OF HIS divorcee'.
49. On what ground could R. Akiba maintain such an opinion?
50. Deut. XXV, 10.
51. The relative of a haluzah, according to R. Akiba, is consequently, like that of a divorcee, forbidden Pentateuchally. The offspring of a union with such a relative is, therefore, a bastard.

the child¹  is tainted in respect of the priesthood.²  Who [is meant by] 'All agree'? — Simeon the Temanite. For although Simeon the Temanite stated that the offspring of a union forbidden under the penalty of flogging is not a bastard, he agrees that, though he is not a bastard, he is nevertheless tainted.³  This is deduced a minori ad majus from the case of a widow: If in the case of a widow married to a High Priest, the prohibition of whom is not applicable to all,⁴  her son¹  is tainted,³  how much more should the son of a divorcee be tainted, whose prohibition is equally applicable to all.⁵  [This argument, however], may be refuted: A widow's case may well be different⁶  because she herself becomes profaned and;⁷  and, furthermore, it is written in Scripture, She is an abomination,⁸  'she'⁹  only is an abomination but her children are not an abomination. — Furthermore, it was taught: Where a man remarried his divorced wife, or married his haluzah, or married the relative of his haluzah, R. Akiba said, his betrothal of her is not valid,¹⁰  she requires no divorce from him, she is disqualified,¹¹  her child is disqualified,¹²  and the man is compelled to divorce her. And the Sages said: His betrothal of her is valid, she requires a divorce from the man, she is fit, and her child is fit. Now, in respect of what?¹³  Obviously in respect of the priesthood!¹⁴  — No; in respect of entering the congregation.¹³

If so, in respect of whom is she¹⁵  fit? If it be suggested 'in respect of entering the congregation', is not this [it may be retorted] obvious? Has she become ineligible to enter the congregation because she played the harlot!¹⁶  Consequently it must mean in respect of the priesthood. Now, since she is [untainted] in respect of the priesthood, her child also must be [untainted] in respect of the priesthood!¹⁴  — Is this an argument? The same term may bear different interpretations in harmony with its respective subjects.¹⁷  This¹⁸  is also logically sound. For in the first clause¹⁹  it was stated, 'She is disqualified and her child is disqualified'. Now, in respect of what is 'she disqualified'? If it be suggested, 'in respect of entry into the congregation', does she [it may be retorted] become disqualified for entry into the congregation because she played the harlot!²⁰  Consequently it must mean 'in respect of the priesthood!' Now, again, in respect of what is 'her child disqualified'? If it be suggested, 'in respect of the priesthood' thus implying that he is permitted to enter the congregation, surely [it may be objected] R. Akiba stated that the child is a bastard!²¹  Obviously then 'in respect of entry into the congregation'.²²  And, as in the first clause the same term bears different interpretations in harmony with its respective subjects, so may the same term in the final clause bear different interpretations in agreement with its respective subjects.²³  Also as to the expression,²⁴  This is an abomination it [may be interpreted]: 'She is an abomination but her rival is no abomination'.²⁵  Her children, however, are an abomination.²⁶

The objection. however, from the 'widow' [still remains, thus]: 'A widow's case may well be different²⁷  because she herself becomes²⁸  profaned'!²⁹  — But [the fact is that] if any statement was made³⁰  it was as follows:³¹  R. Joseph stated in the name of R. Simeon b. Rabbi, 'All agree that where a man cohabited with any of those who are subject to the penalty of kareth³²  the child³³  is tainted'.³⁴  Who [is referred to by] 'All agree'? — R. Joshua. For although R. Joshua stated that the offspring of a union forbidden under the penalty of kareth is not a bastard, he agrees that, though he is no bastard, he is nevertheless tainted.³⁵  This is deduced a minori ad majus from the case of a widow: If in the case of a widow married to a High Priest, the prohibition of whom is not applicable to all,³⁶  her son³⁷  is tainted,³⁵  how much more should the son of this woman be tainted whose prohibition is equally applicable to all.³⁸

And were you to object: A widow's case may be different³⁹  because she herself becomes profaned,⁴⁰  [it may be retorted that], here also, as soon as the man had any connubial relations with her he stamped her as a harlot.⁴¹

Rabbah b. Bar Hana said in the name of R. Johanan: All agree that where a slave or an idolater had intercourse with a daughter of an Israelite the child is a bastard. Who is meant by 'All agree'? — Simeon the Temanite. For although Simeon the Temanite stated that the offspring of a union forbidden under the penalty of flogging is not a bastard, his statement applies only

1. The offspring of such a union.
2. [H] defective, inferior (in status). If a male he is disqualified from the priesthood: and if a female she is ineligible to marry a priest. [Rashi reads simply: 'the child is tainted', so MS.M.]
3. And disqualified for the priesthood.
4. A widow is forbidden to a High Priest only, but not to an ordinary priest or an Israelite.
5. No one, priest or Israelite, may remarry his divorced wife after she had been married to another man.
6. I.e., her son may indeed be tainted.
7. Having once married a High Priest unlawfully, she may not marry after his death even an ordinary priest (v. Kid. 77a), and if she is a priest's daughter she loses her privilege to eat terumah (v. infra 68a). In the case of a remarried divorcee these restrictions do not apply, since she is permitted to eat terumah if she is a priest's daughter (v. infra 69a) while her prohibition to marry a priest is not due to her remarriage, but to her previous divorce.
8. Deut. XXIV, 4.
9. [H] rendered by E.V., it; lit., 'she', is taken to refer to the woman. The Talmudic text here is not very clear. (V. supra 11b for a smoother text and further notes, and cf. BaH a.l.).
10. Unions subject to the penalty of flogging are in his opinion invalid.
11. May not marry a priest.
12. Being deemed a bastard.
13. Is the child regarded as fit. I.e. fit to marry a proper Israelite; v, Deut. XXIII, 1ff.
14. Which is contrary to the conclusion arrived at by the argument a minori ad majus!
15. The remarried divorcee.
16. I.e., contracted a forbidden marriage.
17. Lit., 'that as it is and that etc,'. The term 'untainted' in the case of the woman may have reference to priesthood, but in the case of the child it may refer to entry into the congregation; while in respect of the priesthood the child may well be regarded as tainted.
18. The thesis that the interpretation of the same term may vary in harmony with its respective subjects though both appear in the same context.
19. Of the cited Baraitha.
20. I.e., contracted a forbidden marriage.
21. Who may not enter into the congregation. (V. Deut. XXIII, 3).
22. Although the same term, in the same context, when applied to the mother, referred to the priesthood.
23. V. supra p. 289. n. 10, for lit. meaning.
24. From which it has been sought to prove supra that the inference from the case of a widow married to a High Priest cannot be upheld.
25. I.e., the exclusion refers to her rival who may contract levirate marriage.
26. I.e., disqualified from the priesthood. as has been inferred supra.
27. I.e., her son may indeed be tainted.
28. V. supra p. 288, n. 13.
29. Which leads to the conclusion that no inference a minori ad majus may be drawn from the case of the widow. How, then, could R. Joseph state in the name of R. Simeon, supra, that all agree that the child is disqualified?
30. By R. Joseph in the name of R. Simeon, on the subject under discussion.
31. Lit., 'thus it was said'.
32. For that cohabitation.
33. The offspring of such a union.
34. V. supra p. 282, no. 8ff.
35. And disqualified for the priesthood.
36. A widow is forbidden to a High Priest only, but not to an ordinary priest or Israelite.
37. The offspring of such a union.
38. No one, priest or Israelite, may remarry his divorced wife after she had been married to another man.
39. I.e., her son may indeed be tainted.
40. V. supra p. 288, n. 13.
41. Because of the forbidden union, and she, like the widow who was married to a High Priest, is in consequence forbidden to marry even a common priest.