Babylonian Talmud: Tractate Yebamoth

Folio 61a

that the graves of idolaters do not impart levitical uncleanness by an ohel,¹  for it is said, And ye My sheep the sheep of My pasture, are men;²  you are called men³  but the idolaters are not called men.³

An objection was raised: And the persons were sixteen thousand!⁴  — This is due to [the mention of] cattle.⁵  Wherein are more than six-score thousand persons that cannot discern between their right and their left hand!⁶  — This is due [to the mention of] cattle.⁷  Whosoever hath killed any person, and whosoever hath touched any slain, purify yourselves!⁸  — One of the Israelites might have been slain. And the Rabbis?⁹  — [Scripture states]. There lacketh not one man of us.¹⁰  And R. Simeon b. Yohai? — There lacketh not one man of us, through indulgence in sin.

Rabina replied: Granted that Scripture excluded them¹¹  from imparting uncleanness through an ohel,¹²  because of the written text, When a man dieth in the tent,¹³  did Scripture also exclude them from [imparting uncleanness by] touch and carriage?¹⁴

MISHNAH. [A PRIEST WHO] BETROTHED A WIDOW, AND WAS SUBSEQUENTLY APPOINTED HIGH PRIEST, MAY CONSUMMATE THE MARRIAGE. IT ONCE HAPPENED WITH JOSHUA B. GAMALA THAT HE BETROTHED MARTHA THE DAUGHTER OF BOETHUS, AND THE KING APPOINTED HIM HIGH PRIEST, AND HE, NEVERTHELESS, CONSUMMATED THE MARRIAGE.

IF ONE AWAITING THE DECISION OF THE LEVIR¹⁵  BECAME SUBJECT TO A COMMON PRIEST WHO WAS SUBSEQUENTLY APPOINTED HIGH PRIEST, [THE LATTER], THOUGH HE ALREADY ADDRESSED TO HER A MA'AMAR, MUST NOT CONSUMMATE THE MARRIAGE.

GEMARA. Our Rabbis taught: Whence is it deduced that [a priest] who betrothed a widow and was afterwards appointed High Priest may consummate the marriage? It is specifically stated in Scripture, Shall he take to wife.¹⁶  If so, [the same law should apply to] a yebamah awaiting the decision of the levir also! — A 'wife' but not a yebamah.

IT ONCE HAPPENED TO JOSHUA etc. He APPOINTED HIM¹⁷  but he was not elected!¹⁸  Said R. Joseph: I see here a conspiracy;¹⁹  for R. Assi, in fact, related that Martha the daughter of Boethus brought to King Jannai²⁰  a tarkab²¹  of denarii before he gave an appointment to Joshua b. Gamala among the High Priests.²²

MISHNAH. A HIGH PRIEST WHOSE BROTHER DIED²³  MUST SUBMIT TO HALIZAH BUT MAY NOT CONTRACT THE LEVIRATE MARRIAGE.²⁴

GEMARA. He lays down a general rule implying²⁵  that there is no difference whether [the yebamah became a widow] after betrothal or after marriage! One can well understand [the case of the widow] after marriage, [since marriage with her is forbidden by] a positive²⁶  as well as by a negative commandment,²⁷  and no positive commandment²⁸  may override a negative and a positive commandment;²⁹  but [in the case of a widow] after betrothal, the positives should override the negative commandment!³⁰  — The first act of cohabitation³¹  was forbidden as a preventive measure against the second act of cohabitation.³²

MISHNAH. A COMMON PRIEST SHALL NOT MARRY A WOMAN INCAPABLE OF PROCREATION,³³  UNLESS HE HAD ALREADY A WIFE³⁴  OR CHILDREN.³⁵  R. JUDAH SAID: EVEN THOUGH HE HAS HAD A WIFE AND CHILDREN HE SHALL NOT MARRY A WOMAN INCAPABLE OF PROCREATION, SINCE SUCH³⁶  [IS INCLUDED IN THE TERM OF] HARLOT MENTIONED IN THE TORAH.³⁷  BUT THE SAGES SAID: THE TERM HARLOT IMPLIES ONLY A FEMALE PROSELYTE,³⁸  FREED BONDMAID³⁸  AND ONE WHO HAS BEEN SUBJECTED TO MERETRICIOUS INTERCOURSE.

GEMARA. Said the Exilarch³⁹  to R. Huna: What is the reason?⁴⁰  Obviously because of the duty of the propagation of the race; are, then, only priests commanded concerning the propagation of the race while Israelites are not commanded?⁴¹  The other replied:⁴²  Because it was desired to state in the final clause, R. JUDAH SAID: EVEN THOUGH HE HAS HAD A WIFE

1. [H], lit., 'tent', i.e., on the man who stands on, or bends over such a grave, constituting his body, as it were, a tent.
2. Ezek. XXXIV, 31.
3. [H] (Adam), in respect of levitical uncleanness by ohel. The expression [H] is also used in the Pentateuchal text dealing with the laws of the uncleanness of objects found in a tent in which lay a corpse. V. Num, XIX, 14ff. [This is held by R. Simeon b. Yohai to denote, as distinct from the other terms for 'man' ([H]), only an Israelite who, as a worshipper of the true God, can be said to have been like Adam created in the image of God. (Cf. Gen. I, 27 and V, I, where the Heb. text has in each case Adam for 'man'). Idol worshippers having marred the Divine image forfeit all claim to this appelation. V. also B.M. Sonc. ed. p. 651, n. 6].
4. Num. XXXI, 40. Here also the Heb. equivalent for persons is [H] though it refers to the Midianites who were idolaters.
5. V, ibid. 37ff. In contrast to cattle, idolaters also may be described as Adam (men).
6. Jonah IV, 11. Cur, edd. add in parentheses 'and much cattle', Here also [H] is the original word rendered persons, though it refers to the idolaters of Nineveh.
7. The conclusion of the verse reads, and also much cattle. Cf, supra n. 4.
8. Num. XXXI, 19, speaking of the slain Midianites; which proves that the corpses of idolaters also impart levitical uncleanness!
9. How could they infer from this text that idolaters also impart levitical uncleanness?
10. Num. XXXI, 49, so that the verse cannot refer to the corpses of Israelites.
11. Idolaters.
12. V. Glos.
13. Num. XIX, 14. V. supra note 2.
14. Of a corpse. Certainly not. Hence no objection may be raised from texts which may refer to uncleanness through carriage or touch.
15. Shomereth yabam, v. Glos.
16. Lev. XXI, 14. The word 'wife' is superfluous; hence the deduction.
17. [H] Piel of [H] is the form of the verb used for an appointment by the State without previous nomination by the religious authorities. Such appointments were not made on the merits of the candidates but were procured by bribe or political intrigue.
18. [H] Nithpael of [H] is the form of the verb usually used for the appointment of High Priests who were duly nominated by the priests and the Sanhedrin.
19. Political intrigue against the wishes of the religious authorities.
20. [Jannai is often employed in the Talmud as a general patronym for Hasmonean and Herodian rulers. Here it stands for Agrippa II, v. Josephus Antiquities XX, 9, 4, and Derenbourg, Essai, pp. 248ff].
21. A measure of capacity. V, Glos.
22. Yoma 18a.
23. Without issue,
24. His sister-in-law, being a widow, is forbidden to him.
25. Lit., 'he cuts off (decides) and teaches'.
26. And he shall take a wife in her virginity, Lev. XXI, 13.
27. A widow … shall he not take, ibid. 14.
28. That of the levirate marriage, v. Deut, XXV, 5.
29. V. supra nn. 3 and 4.
30. V. supra n. 4. The positive commandment that 'he must marry a virgin' (v. supra n. 3) is not thereby infringed!
31. Which is indeed Pentateuchally permitted. Cf. supra n. 5.
32. Which is not required for the fulfillment of the precept of the levirate marriage.
33. [H] v. Glos. s.v. Ilonith.
34. So Maimonides. Rashi seems to omit 'wife'.
35. Because it is one's duty to propagate the race. V. Gemara infra.
36. A woman one marries for the gratification of one's passions and not for the propagation of the race.
37. V. Lev. XXI, 7.
38. Who is disqualified through her presumed intercourse with idolaters and slaves.
39. [H].
40. Why a priest may not marry a woman incapable of procreation?
41. Why then was only the priest mentioned?
42. Priest only had to be mentioned.

AND CHILDREN HE SHALL NOT MARRY A WOMAN INCAPABLE OF PROCREATION, SINCE SUCH [IS INCLUDED IN THE TERM OF] HARLOT MENTIONED IN THE TORAH. Since priests only were commanded concerning the harlot while Israelites were not so commanded, therefore PRIEST only was mentioned.

Said R. Huna: What is R. Judah's reason? — Since it is written, And they shall eat, and not have enough, they shall commit harlotry and shall not increase,¹  any cohabitation which results in no increase is nothing but meretricious intercourse.

It was taught: R. Eliezer stated, A priest shall not marry a minor. Said R. Hisda to Rabbah: Go and consider this matter,²  for in the evening R. Huna will question you on the subject. When he went out he considered the point [and came to the conclusion that] R. Eliezer was of the same opinion as R. Meir and also of the same Opinion as R. Judah. 'He is of the same opinion as R. Meir' who takes exceptional cases³  into consideration;⁴  and 'also of the same opinion as R. Judah', who holds that a woman incapable of procreation is regarded as a harlot.⁵  But does he⁶  hold the same opinion as R. Meir? Surely it was taught: A minor, whether male or female, may neither perform, nor submit to halizah, nor contract levirate marriage; so R; Meir. They said to R. Meir: You spoke well [when you ruled], may neither perform, nor submit to halizah', since in the Pentateuchal section⁷  man was written,⁸  and we also draw a comparison between woman and man.⁹  What, however, is the reason why they may not contract levirate marriage? He replied: Because a minor male might be found to be a saris;¹⁰  a minor female might be found to be incapable of procreation; and thus the law of incest would be violated.¹¹  And it was also taught: A minor female may contract the levirate marriage¹²  but may not perform halizah;¹³  so R. Eliezer!¹⁴

And does he hold the same opinion as R. Judah? Surely it was taught: Zonah¹⁵  implies, as her name [indicates, a faithless wife];¹⁶  so R. Eliezer. R. Akiba said: Zonah implies one who is a prostitute.¹⁷  R. Mathia b. Heresh said: Even a woman whose husband, while going¹⁸  to arrange for her drinking,¹⁹  cohabited with her on the way,²⁰  is rendered a zonah. R. Judah said: Zonah implies one who is incapable of procreation.²¹  And the Sages said: Zonah is none other than a female proselyte, a freed bondwoman, and one who has been subjected to any meretricious intercourse. R. Eleazar²²  said: An unmarried man who had intercourse with an unmarried woman, with no matrimonial intent, renders her thereby a zonah!²³  No, said R. Adda b. Ahabah, the reference here²⁴  is to²⁵  a High Priest. For when does he acquire her [as his lawful wife]? Only when she grows up;²⁶  but, then, she is already a be'ulah.²⁷  Said Raba:²⁸  What thoughtlessness!²⁹  If her father had arranged her betrothal, then [the High Priest] would have acquired her from that very moment;³⁰  and if she herself had accepted the betrothal, is this³¹  then the view of R. Eliezer only³²  and not that of the Rabbis!³³  No, explained Raba, it³⁴  refers indeed to a common priest, but [the prohibition to marry the minor] is a precaution against the possibility of her seduction³⁵  while living with him. If so, [the same should apply to] an Israelite also! — The seduction of a minor is regarded as an outrage, and an outraged woman is permitted in the case of an Israelite.³⁶  R. Papa replied: [It³⁴  speaks] of a High Priest, and it represents the opinion of the following Tanna. For it was taught: A virgin;³⁷  as one might assume it to mean a minor, it was explicitly stated wife. If only 'wife' [had been written], it might have been assumed to mean one who is adolescent,³⁸  hence it was explicitly stated, 'a virgin'. How, then [is the text to be understood]? One who has emerged from her minority but has not yet attained adolescence.³⁹

R. Nahman b. Isaac explained:⁴⁰  It is the opinion of the following Tanna. For it was taught: A virgin;³⁷  the only meaning of 'virgin' is damsel;⁴¹  and so it is said in Scripture, And the damsel⁴²  was very fair to look upon, a virgin.⁴³ 

R. Eleazar said: An unmarried man who had intercourse with an unmarried woman, with no matrimonial intent, renders her thereby a zonah.' R. Amram said: The halachah is not in agreement with the opinion of R. Eleazar.

MISHNAH. A MAN SHALL NOT ABSTAIN FROM THE PERFORMANCE OF THE DUTY OF THE PROPAGATION OF THE RACE⁴⁴  UNLESS HE ALREADY HAS CHILDREN. [AS TO THE NUMBER]. BETH SHAMMAI RULED: TWO MALES, AND BETH HILLEL RULED: MALE AND A FEMALE, FOR IT IS STATED IN SCRIPTURE, MALE AND FEMALE CREATED HE THEM.⁴⁵

GEMARA. [This implies] if he has children, he may abstain from performing the duty of propagation but not from that of living with a wife.⁴⁶  This provides support for a statement R. Nahman made in the name of Samuel who ruled that although a man may have many children he must not remain without a wife, for it is said in the Scriptures, It is not good that the man should be alone.⁴⁷

Others read: [This⁴⁸  implies] if he has children he may abstain from performing the duty of propagation and also from that of living with a wife. May it, then, be said that this presents an objection against the statement R. Nahman made in the name of Samuel?⁴⁹  — No; if he has no children he must marry a woman capable of procreation; and if he has children he may marry a woman who is incapable of procreation. What is the practical difference?⁵⁰  — In respect of selling a Scroll of the Law for the sake of children.⁵¹  BETH SHAMMAI RULED: TWO MALES. What is Beth Shammai's reason? We make an inference from Moses, in connection with whom it is written, The sons of Moses: Gershom and Eliezer.⁵²  And Beth Hillel? — We infer from the creation of the world. Let Beth Shammai also infer from the creation of the world! — The possible cannot be inferred

1. Hos. IV, 10.
2. Why R. Eliezer ruled a priest shall not marry a minor.
3. Lit., 'minority'.
4. It is possible, though not usual, that the minor would be found to be sterile.
5. If she marries. Cf. supra p. 407, n. 13, and text.
6. R. Eliezer.
7. Dealing with halizah.
8. V. Deut. XXV, 7.
9. As the male must be a grown-up man and not a minor so must the female be a grown-up woman.
10. Wanting in generative powers. V. Glos.
11. Bek. 19b, infra 119a; they not being capable of procre- ation, there would be no offspring to succeed to the name of the deceased brother. The woman, therefore, is forbidden to the man as 'his brother's wife'.
12. Though the act of a minor has no validity, she may contract the marriage, since the commandment of the levirate marriage will be fulfilled as soon as she becomes of age.
13. Since her action has no validity and cannot, therefore, set her free to marry a stranger.
14. How then, could R. Eliezer be said to hold the same view as R. Meir?
15. E.V. harlot (Lev. XXI, 7) who is forbidden to marry a priest (ibid.).
16. V. Rashi. [H] from rt. [H] 'to go astray', 'to run away' sc. from her husband.
17. Though unmarried.
18. To the supreme court in Jerusalem.
19. Of the water of bitterness; v. Num. V, 8.
20. When she is forbidden to him. From the moment of her seclusion with a stranger, after her husband had warned her to hold no secret meetings with that man, until after the test of the water, cohabitation between husband and wife is forbidden.
21. If she marries. Cf. supra p. 407, n. 13 and text.
22. Cur. edd. 'Eliezer'.
23. How, then, could it be said that R. Eliezer is of the same opi- nion as R. Judah?
24. The statement of R. Eliezer supra.
25. Lit., 'here we are engaged in'.
26. While she is a minor, her betrothal has no validity.
27. V. Glos. Owing to his own cohabitation which had no lawful sanction and was in the nature of an outrage or seduction.
28. With reference to R. Adda b. Ahabah's reply.
29. [H] (v. Rashi) without heart. [H] may perhaps mean 'consumption of the heart', i.e., 'what annoyance' to hear such an illogical explanation!
30. A father is fully entitled to arrange the betrothal of his minor daughter (v. Kid. 3b).
31. The ruling that a High Priest may not marry her.
32. As seems to be implied by the statement supra where only R. Eliezer is mentioned as if the Rabbis differed from him.
33. In such a case, surely, even the Rabbis agree.
34. The statement of R. Eliezer supra.
35. Owing to her youth and inexperience.
36. To a priest, however, she is forbidden. Hence R. Eliezer's restriction of his ruling to the priest only:
37. Lev. XXI, 4.
38. A bogereth (v. Glos.).
39. A minor is thus forbidden, and R. Eliezer's ruling is based on a Pentateuchal deduction.
40. Following the line of R. Papa.
41. [H], one between twelve and twelve and a half years of age.
42. [H].
43. [H], Gen. XXIV, 16.
44. [H]. V, Gen. I, 28: [H], be fruitful and multiply.
45. Gen. V, 2.
46. Since our Mishnah mentions only the exemption from the former and not from that of the latter.
47. Gen. II, 18.
48. [Since the Mishnah does not state, A man shall not marry a woman who is incapable of bearing children unless he already has children (Tosaf.)].
49. Supra, that a man must never remain unmarried.
50. As regards the duty of marriage. In either case one must not remain single.
51. Only a man who has no children must sell even such a precious object if thereby he is enabled to marry a woman capable of procreation. If he has children such a sale is forbidden, and he must contract a less expensive marriage with an old or sterile woman.
52. I Chron. XXIII, 15.