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Babylonian Talmud: Tractate Yebamoth
that he may divorce her with a letter of divorce and that he may remarry her',1 let it there also be said, 'And perform the duty of a husband's brother unto her,2 the former levirate attachment still remains with her' and, consequently, she should require halizah [also]! — There the case is different; since Scripture stated, 'And take her to him to wife',2 as soon as he married her she becomes his wife in every respect. If so, [the same deduction should be applied] here also! — Surely the All Merciful has written, 'And perform the duty of a husband's brother unto her'.2 And why the differentiation?3 - It stands to reason that permission4 should be applied to that which is [also otherwise] permitted,5 and that prohibition6 should be applied to that which is [also otherwise] prohibited.7
According to R. Simeon, however, who stated, 'Because when he was born he found her permitted, and she was never forbidden to him even for one moment',8 a brother, if this reason is tenable,9 should be allowed to take in levirate marriage his maternal sister whom his paternal brother had married prior to his birth, dying subsequently, since, when he was born, he found her permitted.10 — Whither did the 'prohibition of sister' vanish?11 — Here, also, whither did the prohibition of 'the wife of the brother who was not his contemporary' vanish! — The one12 is a prohibition which can never be lifted; the other13 is a prohibition which may be lifted.14
MISHNAH. A GENERAL RULE HAS BEEN LAID DOWN15 IN RESPECT OF THE DECEASED BROTHER'S WIFE:16 WHEREVER SHE IS PROHIBITED17 AS A FORBIDDEN RELATIVE, SHE18 MAY NEITHER PERFORM THE HALIZAH NOR BE TAKEN IN LEVIRATE MARRIAGE. IF SHE IS PROHIBITED BY VIRTUE OF A COMMANDMENT19 OR BY VIRTUE OF HOLINESS,20 SHE MUST PERFORM THE HALIZAH AND MAY NOT BE TAKEN IN LEVIRATE MARRIAGE. IF HER SISTER IS ALSO HER SISTER-IN-LAW,21 SHE22 MAY PERFORM THE HALIZAH OR MAY BE TAKEN IN LEVIRATE MARRIAGE.23
PROHIBITED BY VIRTUE OF A COMMANDMENT' [REFERS TO] THE SECONDARY DEGREES IN RELATIONSHIP FORBIDDEN BY THE RULING OF THE SCRIBES. 'PROHIBITED BY VIRTUE OF HOLINESS' [REFERS TO THE FOLLOWING FORBIDDEN CATEGORIES]: A WIDOW TO A HIGH PRIEST;24 A DIVORCED WOMAN, OR ONE THAT HAD PERFORMED HALIZAH TO A COMMON PRIEST;25 A FEMALE BASTARD OR A NETHINAH26 TO AN ISRAELITE;27 AND A DAUGHTER OF AN ISRAELITE,27 TO A NATHIN28 OR A BASTARD.
Some there are who say:31 'Whenever her prohibition is that of a forbidden relative then only is her rival forbidden; when, however, her prohibition is not that of a forbidden relative, her rival is not forbidden'. What was this meant to exclude? — Rafram replied: To exclude the rival of one incapable of procreation, contrary to the view of R. Assi.30
IF HER SISTER IS ALSO HER SISTER-IN-LAW [etc.]. Whose sister? If the sister of her who is forbidden by Virtue of an ordinance of the Scribes be suggested, fit may be objected,] since, pentateuchally, she32 is subject to the levir, he would33 come in marital contact with the sister of her who is connected with him by the levirate bond! — It means the sister of her who is prohibited to him as a forbidden relative.
PROHIBITED BY VIRTUE OF A COMMANDMENT', [REFERS TO] THE SECONDARY DEGREES. Why are these designated, PROHIBITED BY VIRTUE OF A COMMANDMENT'? — Abaye replied: Because it is a commandment to obey the rulings of the Sages.
PROHIBITED BY VIRTUE OF HOLINESS' … A WIDOW TO A HIGH PRIEST; A DIVORCED WOMAN, OR ONE WHO HAD PERFORMED THE HALIZAH, TO A COMMON PRIEST. Why are these designated 'PROHIBITED BY VIRTUE OF HOLINESS'? — Because It is written in the Scriptures, They shall be holy onto their God.34
It was taught: R. Judah reverses the order: prohibited by virtue of a commandment [refers to the following prohibited categories:] a widow to a high priest; a divorced woman or one that had performed halizah, to a common priest. And why are these designated, prohibited by virtue of a commandment? — Because it is written in the Scriptures, These are the commandments.35 prohibited by virtue of holiness [refers to] the secondary degrees of relationship forbidden by the rulings of the scribes. And why are these designated, prohibited by virtue of holiness? — Abaye replied: Because whosoever acts in accordance with the rulings of the Rabbis is called a holy man. Said Raba to him: Then he who does not act in accordance with the rulings of the Rabbis is not called a holy man; nor is he called a wicked man either?36 — No, said Raba: 'Sanctify yourself by that which is permitted to you'.37
A WIDOW TO A HIGH PRIEST. An unqualified ruling is laid down making no distinction between a nissu'in38 widow and an erusin38 widow. Now, one can well understand the reason the case of a nissu'in widow [since marriage with her is forbidden by] a positive39 and a negative precept,40 and no positive precept41 may override both a negative and a positive precept. In the case, however, of an erusin widow [marriage with whom is forbidden by] a negative precept only,42 let the positive precept41 override the negative40 one? — R. Giddal replied in the name of Rab: Scripture stated, Then his brother's wife shall go up to the 'gate,43 where there was no need to state his brother's wife;44 why then was 'his brother's wife' specified? [To indicate that] there is a case of another45 brother's wife who goes up for halizah but does not go up for levirate marriage.46 And who is she? One of those prohibited47 by a negative precept.48
Might it49 not be said [to include also] such as are subject to the penalty of kareth?50 — Scripture said, If the man like not to take,51 if he likes, however, he may take her in levirate marriage, [hence it is to be inferred that] whosoever may go up to enter into levirate marriage may also go up to perform halizah and whosoever may not go up to enter into levirate marriage52 may not go up to perform halizah either. If so, the same should apply also to those forbidden by a negative Precept! — But, surely, the All Merciful has included them [by the expression] 'His brother's wife'. What ground is there for such differentiation?53
— This1 stands to reason, since betrothal of those forbidden by a negative precept is valid while the betrothal of those subject to kareth is not valid.
Raba raised an objection: In the case of one forbidden by virtue of a commandment or by virtue of holiness, with whom the Ievir bad intercourse or participated in halizah, her rival is thereby exempt. Now, if one is to assume that those forbidden by a negative precept are Pentateuchally subject to halizah but not to the levirate marriage, why should her rival be exempt when he had intercourse with her? He raised the objection and he also supplied the answer: This is to be understood respectively;2 'he had intercourse with her' refers to one prohibited by virtue of a commandment,3 'participated in halizah with her' refers to the one forbidden by virtue of holiness.4
Raba raised an objection: He who is wounded in the stones or has his privy member cut off, a man-made saris,5 and an old man, may either participate in halizah or contract levirate marriage. How?6 If these died and were survived by brothers and by wives, and those brothers arose and addressed a ma'amar to the widows, or gave them letters of divorce, or participated with them in halizah, their actions are legally valid;7 if they had intercourse with them, the widows become their lawful wives.8 If the brothers died and they9 arose and addressed a ma'amar to their wives, or gave them divorce, or participated with them in halizah, their actions are valid,7 and if they had intercourse with them, the widows become their lawful wives but they10 may not retain them, because it is said in the Scriptures — He that is wounded in the stones or hath his privy member cut off shall not enter [into the assembly of the Lord].11 Now, if it could be assumed that those forbidden by a negative precept are Pentateuchally subject to halizah and not to levirate marriage, why should the widows become their lawful wives if they12 had intercourse with them?13
But, said Raba, [say rather that] an erusin widow is forbidden14 by both a positive and a negative precept, for it is written in the Scriptures, They shall be holy unto their God.15 What, however, can be said in respect of a bastard or a nethinah?16 — It is written, And sanctify yourselves.17 If so,18 all the [negative precepts of the] Torah should be regarded as positive and negative since it is written in the Scriptures, And sanctify yourselves!17 But, said Raba, [the fact is that]19 an erusin widow is forbidden20 as a preventive measure against the marriage of a nissu'in widow.21 What, however, can be replied in respect of a bastard and a nethinah?22 — [The prohibition in] the case where a precept is applicable23 is a preventive measure against [a marriage] where no precept is applicable. If so, let one's paternal brother's wife not be allowed levirate marriage as a preventive measure against marriage with the wife of his maternal brother! — 'We All Merciful made levirate marriage dependent on inheritance24 [and the relationship] is, therefore, well known.25 A woman, then, who has no children should not be taken in levirate marriage as a preventive measure against the marriage of a woman who has children! — The All Merciful made levirate marriage dependent on [the absence of] children, [and the fact26 would be] well known. The wife of one's contemporary brother should not be taken in levirate marriage as a preventive measure against marriage with the wife of one's brother who was not one's contemporary! — The All Merciful has made it27 dependent on dwelling together28 [and the fact]29 is well known. All women should not be taken in levirate marriage as a preventive measure against the marriage of a woman incapable of procreation! — This30 is unusual.31 A bastard and a nethinah also are unusual!32 — But, said Raba, [this is the reason]: The first act of Intercourse33 is forbidden34 as a preventive measure against a second act of intercourse.35
It has been taught likewise: If they36 had intercourse [with any of the forbidden women] they acquire [her as wife] by the first act of intercourse, but may not keep her for a second act of intercourse.37
Subsequently Raba, others say R. Ashi, said: The statement I made38 is valueless,39 for Resh Lakish said, 'Wherever you come upon a combination of a positive and a negative precept and40 you are able to act in conformity with both, well and good; but if not, the positive precept must override the negative'.41 Similarly here42 it is possible to perform halizah, whereby one is enabled to keep the positive as well as the negative precept.
It was stated: Concerning an act of intercourse between a High Priest and a widow44 [there is a difference of opinion between] R. Johanan and R. Eleazar. One maintains that it does not exempt her rival,45 and the other maintains that it does exempt her rival.46 )
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