Babylonian Talmud: Tractate Yebamoth

Folio 94a

hate her brother-in-law?¹  — R. Shesheth answered them: You have learned it, IF A WOMAN.. WAS TOLD, YOUR HUSBAND DIED AND YOUR SON DIED AFTERWARDS', AND SHE MARRIED AGAIN, AND LATER SHE WAS TOLD, 'IT WAS OTHERWISE', SHE MUST DEPART; AND ANY CHILD BORN BEFORE OR AFTER IS A BASTARD.²  Now, how is this to be understood? If it be suggested [that there were] two witnesses against two,³  what reason do you see [it may be asked] for relying on the latter? Rely rather on the former! Furthermore, [how could the child be described as a] BASTARD, [when he is only] an uncertain bastard! And should you reply that he⁴  was not exact in his expression. Surely [it may be pointed out] since in the final clause he⁴  stated, ANY CHILD BORN BEFORE [THE DEATH OF HER FIRST HUSBAND] IS A BASTARD, BUT ONE BORN AFTER IT IS NO BASTARD,²  it may be inferred that he was exact in his expressions! Consequently⁵  [it must be concluded that the first report was that of] one witness, and that the reason [why he is not believed is] because two witnesses came and contradicted his evidence, but had this not been the case⁶  he would have been believed!⁷  [No]. In fact [it may be retorted, there may have been] two witnesses against two, and [this is the explanation]:⁸  As As R. Aha b. Manyumi stated, 'Where the witnesses have proved an alibi',⁹  so here also [It is a case where the second pair of] witnesses have proved an alibi.¹⁰

Said R. Mordecai to R. Ashi, — others Say. R. Aha said to R. Ashi: Come and hear: A woman is not believed if she says. 'My brother-in-law is dead, and so I may marry again', or, 'My sister is dead, and so I may enter¹¹  her house'.¹²  Only she is not believed but one witness is believed!¹³  According to your argument, however, [it may be retorted] read the final clause: A man is not believed when he says.'My brother is dead, and so I may contract the levirate marriage with his wife', or, 'My own wife is dead, and so I may marry her sister' — 10 Is it only he who is not believed, but one witness is believed? In the case of a woman¹⁴  one can well understand that in order to prevent her perpetual desertion the Rabbis have relaxed the law in her favour.¹⁵  What, however, can be said in the case of a man! [This statement]¹⁶  then [it must be explained] was required in accordance with the view of R. Akiba.¹⁷  It might have been assumed that, since R. Akiba stated that the offspring of a union between those who are subject to the penalty of negative commandments is a bastard, she¹⁸  may be presumed to be desirous of avoiding injury¹⁹  and to institute, therefore, careful enquiries.²⁰  hence we were taught²¹  [that she is not to be believed].²²

Raba said:²³  That one witness is believed in the case of a sister-in-law²⁴  [may be inferred] a minori ad majus: If you have permitted [a woman to marry again]²⁵  in face of a prohibition involving kareth²⁶  how much more so in face of a mere prohibitory law.²⁷  Said one of the Rabbis to Raba: Her own case proves [the contrary]: In face of a prohibition involving kareth²⁴  you have permitted her [to marry again]²⁸  while in face of a mere prohibitory law²⁷  you have not permitted her!²⁹  The fact, however, is this:³⁰  Why is she not believed?²⁹  Because, as she may sometimes hate the levir, she might marry a stranger without first instituting careful enquiries;³¹  so also in the case of one witness, since she may sometimes hate the levir, she might marry [a stranger] without first instituting the necessary enquiries.³¹

THIS DID R. ELEAZAR B. MATHIA DERIVE BY MEANS OF THE FOLLOWING EXPOSITION etc. Said Rab Judah in the name of Rab:³²  R. Eleazar could have produced³³  a pearl and produced but a potsherd. What is meant by 'pearl'? — That which was taught: Neither [shall they take] a woman put away from her husband.³⁴  even if she was divorced from her husband alone³⁵  she³⁶  is disqualified from marrying a priest.³⁷  And it is this [that was meant by] the 'scent of the divorce'³⁸  which disqualifies a woman from marrying a priest.

MISHNAH. IF A MAN'S WIFE HAD GONE TO A COUNTRY BEYOND THE SEA AND HE WAS TOLD,³⁹  YOUR WIFE IS DEAD', AND, AFTER HE MARRIED HER SISTER, HIS WIFE CAME BACK, [THE LATTER] IS PERMITTED TO RETURN

1. V. supra p. 636. n. 3.
2. V. supra p. 636, n. 4.
3. V. supra p. 636, n. 5.
4. V. supra p. 636, n. 6.
5. Lit., 'but not'.
6. Lit., 'not thus'.
7. From which it follows that the evidence of one witness is accepted in permitting a sister-in-law to marry a stranger.
8. Why the evidence of the second pair is regarded as more reliable than that of the first pair.
9. [H] (rt. [H], cf. Deut. XIX, 19) 'causing witnesses to be subjected to the law of retaliation' by disproving their evidence. This is effected when a second pair of witnesses testify that the first pair were with them at a certain place at the time when according to their evidence an act had been committed or an event had occurred at another place.
10. They testified that the former were with them at the time they alleged the death of the husband or that of the son to have occurred. Cf. Mak. 5a. In such a case, the second report is accepted.
11. To marry her husband. A sister's husband is forbidden while the sister is alive.
12. V. Infra 118b with slight variants.
13. Could not then this Mishnah supply the answer to the enquiry addressed to R. Shesheth?
14. Who is permitted to marry again on the evidence of one witness.
15. Supra n. 6.
16. In the Mishnah cited, that a woman is not believed.
17. It Is for this purpose only that was recorded; and no inference, such as those suggested. may be drawn from it.
18. A woman who is subject to a levir, and marriage with whom by a stranger is forbidden by a negative commandment.
19. To her person and status. Should the report prove to have been false, she is penalized as stated supra. 'Of the child', In cur. edd. is deleted by BaH.
20. Before she definitely asserts that her brother-in-law is dead.
21. Cur. edd. insert in parenthesis: 'That she apprehends her own injury; she does not apprehend the injury of the child' (v. Rashi).
22. For fear she might hate her levir, v. supra 93b.
23. In reply to the enquiry addressed to R. Shesheth. supra.
24. V. supra p. 637, n. 2.
25. On the evidence of one witness who testified that her husband was dead.
26. One of the major penalties for connubial intercourse with a married woman.
27. Marriage of a sister- in-law by a stranger in the circumstances postulated in the enquiry.
28. If she herself declared that her husband was dead.
29. To marry a stranger, though she declared that her brother-in-law was dead.
30. Lit., 'and but'.
31. As to whether the levir had really died.
32. Alfasi and Asheri read, 'Rab said'.
33. Lit., 'expounded'.
34. Lev. XXI, 7.
35. If the husband inserted in the letter of divorce a clause forbidding her to marry anyone else, v. Git., 82b.
36. Though her letter of divorce is, owing to its restrictive clause, of no validity.
37. Even if her husband died, and she remained a widow.
38. I.e., even the mere semblance of a divorce, though the document is invalid.
39. Lit., 'they came and said to him'.

TO HIM;¹  AND HE IS PERMITTED TO MARRY THE RELATIVES OF THE SECOND WOMAN,²  AND THE SECOND WOMAN IS PERMITTED TO MARRY HIS RELATIVES. IF THE FIRST DIED HE IS PERMITTED TO MARRY THE SECOND.

IF HE WAS TOLD, HOWEVER, THAT HIS WIFE WAS DEAD, AND HE MARRIED HER SISTER, AND THEN HE WAS TOLD THAT SHE WAS THEN³  ALIVE BUT HAD SINCE DIED, ANY CHILD BORN BEFORE⁴  [HIS FIRST WIFE'S DEATH] IS A BASTARD, BUT ANYONE BORN AFTER THAT⁵  IS NO BASTARD.

R. JOSE STATED:⁶  WHOSOEVER DISQUALIFIES FOR OTHERS DISQUALIFIES FOR HIMSELF AND WHOSOEVER DOES NOT DISQUALIFY FOR OTHERS DOES NOT DISQUALIFY FOR HIMSELF.

GEMARA. Even though his wife and his brother-in-law⁷  went to a country beyond the sea,⁸  so that such marriage⁹  had the effect of causing the prohibition of the wife of his brother-in-law to his brother-in-law, it is nevertheless the wife of his brother-in-law that is forbidden,¹⁰  while his own wife is permitted.¹¹  and we do not say that, since the wife of his brother-in-law is forbidden to his brother-in-law, his Own wife also should be forbidden to him.¹²

Are we to assume that our Mishnah does not represent the view of R. Akiba? For if [it be in agreement with] R. Akiba [his wife]¹³  would be the sister of his divorcee!¹⁴  For it was taught: None of the women In incestuous marriages forbidden in the Torah require a letter of divorce,¹⁵  except a married woman¹⁶  who remarried in accordance with the decision of the Beth din.¹⁷  R. Akiba, however, adds¹⁸  also a brother's wife¹⁹  and a wife's sister.²⁰  Now, since R. Akiba ruled that she²¹  requires a letter of divorce, [his first wife] becomes ipso facto forbidden to him because she is the sister of his divorcee!²²

Was not, however, the following statement made in connection with this²³  ruling: R. Giddal said in the name of R. Hiyya b. Joseph in the name of Rab, 'How is one to understand this "brother's wife"?²⁴  Where a man's brother, for instance, betrothed a woman and went to a country beyond the sea, and he,²⁵  on hearing that his brother was dead, married his wife;²⁶  since people might say²⁷  that the first²⁸  had attached a certain condition to the betrothal²⁹  and that the latter²⁵  had lawfully married her.³⁰  And how is one to understand a "wife's sister"?²⁴  Where a man, for instance, betrothed a woman and she went to a country beyond the sea, and he, on hearing that she died, married her sister;²⁶  since people might say³¹  that he had attached a certain condition to the betrothal³²  of the first³³  and that he, therefore, legally married the other'.³⁴  In respect of marriage,³⁵  however, can it be said that one had attached a condition to marriage!³⁶

Said R. Ashi to R. Kahana: If [our Mishnah represents the view of] R. Akiba, one's mother-in-law³⁷  should also be mentioned,³⁸  since R. Akiba was heard to state: [The marriage of] a man's mother-in.law after the death [of his wife] is not punishable by burning!³⁹  For it was taught: They shall be burnt with fire. both he and they,⁴⁰  he and one of them;⁴¹  so R. Ishmael. R. Akiba said: He and both of them.⁴²  This presents no difficulty according to Abaye who explained that the difference between them⁴³  lies in the interpretation of the text,⁴⁰  R. Ishmael maintaining that the text mentioned only one⁴⁴  while R. Akiba maintains that the text spoke of two.⁴⁵  According to Raba, however, who explained that the difference between them⁴³  is [the case of marriage of] a man's mother-in-law after the death [of his wife].⁴⁶  his mother-in-law should also have been mentioned!⁴⁷  — The other replied: Granted that Scripture has excluded her⁴⁸  from the penalty of burning. has Scripture. however, excluded her from the prohibition?⁴⁹

Let her,⁵⁰  however, be forbidden [to her husband] through his cohabitation with her sister, her case being similar to that of a woman whose husband went to a country beyond the sea!⁵¹  — [The two cases are] not alike: His wife who, [if she had acted] presumptuously,⁵²  is forbidden to him by Pentateuchal law, has been forbidden to him, when [she acted] unwittingly, by a preventive measure of the Rabbis;

1. Since the marriage with the second was invalid V. infra 95a.
2. V. infra 97a.
3. At the time he married her sister.
4. Lit., 'the first child'.
5. Lit.,'and the last'.
6. His statement is explained infra.
7. The husband of his wife's sister.
8. And on the evidence of one witness, who testified that both were dead, the man married his wife's sister; and subsequently both travellers returned.
9. Of the man with his sister-in-law.
10. To her husband.
11. To him
12. So that the same marriage which results in a prohibition of the one woman does not effect the permissibility of the other.
13. Who comes back and who, according to our Mishnah, is permitted to return to him.
14. With whom marital relationship is forbidden. The second wife, according to R. Akiba, as will tentatively be shown anon, must be divorced.
15. If they were married, such an unlawful marriage being regarded as mere harlotry.
16. Whose husband is reported, by one witness, to be dead.
17. Who accepted the evidence; and later the husband returned. In such a case the women requires a divorce from her second husband also. V. infra 88b.
18. To the women who require a letter of divorce.
19. Whom a man married on the evidence that her husband (his brother) was dead, and her husband subsequently returned.
20. Cf. the first case in our Mishnah.
21. His wife's sister. V. supra n. 8.
22. How, then, could it be said in our Mishnah that his first wife is PERMITTED TO RETURN TO HIM?
23. R. Akiba's.
24. In whose case a letter of divorce is required.
25. The brother at home.
26. In such a case a divorce was necessary.
27. Should the brother return, and the brother at home not give his wife a letter of divorce.
28. The brother who came back from a country beyond the sea.
29. A condition which had not been fulfilled and had thus rendered the betrothal invalid.
30. And so, in order that it be not suspected that a lawful marriage had been dissolved without a letter of divorce, It was enacted, as a preventive measure, that a letter of divorce was in such a case necessary.
31. Should the woman return, and her sister not be given a letter of divorce.
32. V. p. 641. n. 17.
33. The woman who now returned.
34. The sister who remained at home. Cf. supra p. 641, n. 18.
35. The case spoken of in our Mishnah.
36. [Surely no condition is attachable to marriage; and even on the view that marriage may be contracted conditionally, it is unusual for a person to invalidate a marriage because of the non-fulfilment of a condition attached to it (v. Tosaf. s.v. [H])]. All would consequently know that the first marriage was a valid one and that the second was, therefore, invalid. No letter of divorce was, therefore, necessary even according to R. Akiba, whose view, contrary to the previous assumption, may well be represented in our Mishnah.
37. Whom one married on receiving a report that his wife (her daughter) was dead.
38. In our Mishnah.
39. And is presumably permitted.
40. Lev. XX. 14, speaking of a man who take with his wife also her mother (ibid.).
41. The one whom the man was forbidden to marry, viz., the woman he married last.
42. Sanh. 76b.
43. R. Ishmael and R. Akiba.
44. Forbidden woman (v. supra n. 10). the first having been lawfully married.
45. Women that were both forbidden to the man; where, for instance, he married his mother-in-law and her mother. According to this explanation of Abaye the question of marrying a mother-inlaw after the death of one's lawful wife did not arise in the dispute, and R. Akiba's opinion on the subject cannot, therefore, be inferred from it.
46. R. Ishmael maintaining that even when a man had married his mother-in-law after the death of his wife he is to be burned, while R. Akiba maintains that he is burned only if both women were alive. (Cf. Sanh. 76b).
47. In our Mishnah; since, as has been shewn, according to Raba's explanation, marriage of a mother-in-law after the death of her daughter is, according to R. Akiba, permitted
48. A mother-in-law that was married by her son-in- law.
49. Evidently not. Her case, therefore, could not have been mentioned in our Mishnah.
50. The first wife spoken of in our Mishnah, who IS PERMITTED TO RETURN TO HIM.
51. And she married a second husband. In both cases the women acted unwittingly. As in the latter case the woman is forbidden to her husband, so should the woman in the case in our Mishnah.
52. In marrying a second husband.