Yevamot 109a (קט.) — the Talmud in English

And Rabbi Elazar prohibits,

and his reasoning is explained in the Gemara: Does he hold that the first marriage effects the fall to levirate marriage, or is his reasoning based on something else?

b.

And likewise, one who divorces the orphan girl,

who is a minor whom her mother or brothers married off,

and took her back.

Whether he took her back while she was still a minor or whether he took her back after she reached majority, she is

permitted to the yavam,

and she does not become prohibited at the time when she is divorced, by the prohibition of a brother’s wife when there is no mitzva, because it is death that effects the fall to levirate marriage, and not the marriage that effects the fall.

And Rabbi Elazar prohibits.

His reasoning will be explained in the Gemara.

c.

A minor whom her father married off,

whose betrothal, performed by her father, is valid by Torah law,

and she was divorced,

with her father having received her bill of divorce—she does not return to her father’s authority, and her father cannot betroth her again.

Rather, she is

like an orphan during her father’s lifetime,

as her father cannot betroth her, and she cannot betroth herself by Torah law; and she remains, by Torah law, his divorcee.

And

therefore, if

her husband took her back,

by her betrothing herself to him, his betrothal is not valid by Torah law. Consequently, she is prohibited to his brother by Torah law, under the prohibition of a brother’s wife. And if her husband died after taking her back, she does not fall before him for levirate marriage by Torah law; rather, she is prohibited to him under the prohibition of a brother’s wife. Therefore—

According to everyone,

she is

prohibited to the yavam.

Gemara:

Eifa said [

the name of a Sage]:

What is the reason of Rabbi Elazar,

who says in our Mishna that if the deceased brother divorced his wife and took her back, she is prohibited to the yavam?

Since she was subject to him for one moment under a prohibition,

the prohibition of a brother’s wife when there is no mitzva, at the time of her divorce.

The Rabbis said to Eifa: If so,

since her prohibition is the prohibition of the forbidden relation of a brother’s wife—

she should not require even halitza!?

And if you would say,

perhaps one might say,

so too,

that according to Rabbi Elazar she indeed does not require even halitza.

This cannot be the answer. For—

And it was taught in a baraita: They said in the name of Rabbi Elazar—

she performs halitza!

Rather, Eifa said: Rabbi Elazar—

I do not know the reason,

what his reasoning is.

Abaye said: This is the reason of Rabbi Elazar—

He is uncertain whether death effects the fall,

of the yevama to levirate marriage,

or

whether the power of

the first marriage

is what

effects the fall

to levirate marriage. Therefore—

If death effects the fall—

she is cast before him,

she falls before him

for levirate marriage,

as she was not prohibited to him at the time of the fall.

If the first marriage effects the fall—

she was subject to him for one moment under a prohibition,

at the time of the fall, when his brother divorced her.

Rava said: Rabbi Elazar is always certain

like the Rabbis

that death effects the fall,

and he was not uncertain about this matter.

However, everyone is familiar

with, and knows about,

divorce,

as they hear that she was divorced,

but

nevertheless

not everyone is familiar with the taking back,

as not everyone hears that he took her back. And if he dies and his brother performs levirate marriage with her, people will say that he performed levirate marriage with his brother’s divorcee, which is punishable by karet! And we challenge this:

On the contrary,

if she

returned

to him, people will not err, since

once she sits under him,

as people see that she is living with him,

it has publicity!

For there is certainly a public report that he took her back!

And we answer:

What,

is it possible that

we are not dealing

in our Mishna also with a case

where he took her back in the evening

and took her back to him at night,

and died in the morning,

dying in the morning, before people saw her living with him after he took her back, and the matter of his taking her back was not publicized?

In such a case, if his brother performs levirate marriage with her, people will say that he performed levirate marriage with his brother’s divorcee.

Rav Ashi said: This is the reason of Rabbi Elazar—

He issued a decree concerning these,

concerning all women whom their husbands divorced during their lifetimes and then took back, that they may not enter into levirate marriage—

because of an orphan during her father’s lifetime,

whose father betrothed her and received her bill of divorce. According to everyone, if her husband returned

and took her back

while she was a minor and then died, she may not enter into levirate marriage, for she is prohibited to his brother by the Torah prohibition of a brother’s wife, yet she is not his yevama by Torah law.

The Gemara proves in accordance with Rav Ashi’s explanation.

It is also reasonable,

in accordance with Rav Ashi.

From the fact that the latter clause teaches: A minor whom her father married off, and she was divorced,

with her father having received her bill of divorce, she is

like an orphan during her father’s lifetime.

And

if

her husband took her back

after her husband took her back—

according to everyone she is prohibited to the yavam.

This

halakha, which the Mishna wrote as part of our Mishna—

what does it come to teach?

What novelty does it contain, and why did the tanna choose to teach it here? It is

obvious

that since, after her father betrothed her and received her divorce, she left his authority with regard to betrothal, his taking her back can no longer effect her fall to levirate marriage [if the husband who took her back subsequently dies], for by Torah law she is a divorced brother’s wife, who cannot be permitted through levirate marriage, since she does not again fall from a marriage that is valid by Torah law!

Rather, is it not teaching us this,

by teaching this halakha here, that

the reason of Rabbi Elazar

is because he

issued a decree

concerning

those,

those women whom their husbands divorced and then took back, that they may not enter into levirate marriage when their husbands die,

because of this one,

so that people should not err and perform levirate marriage even with an orphan during her father’s lifetime, whom her father betrothed and whose divorce her father received, and whom her husband took back while she was a minor, after which he died—for she is prohibited to his brother by levirate marriage with the karet penalty of a brother’s wife.

And we conclude: Indeed,

infer from here

from our Mishna, in accordance with Rav Ashi, that this is Rabbi Elazar’s reason.

The Gemara brings another proof that this is indeed Rabbi Elazar’s reason:

It was taught

in a baraita

in accordance with Rav Ashi:

The Rabbis concede to Rabbi Elazar with regard to a minor whom her father married off and who was divorced,

so that from that point onward

she is like an orphan during her father’s lifetime.

And

if

her husband took her back

after her husband took her back—

she is prohibited to the yavam, because her divorce was a complete divorce,

by Torah law,

but her return was not a complete return,

since she is a minor who betrothed herself, and her betrothal cannot take effect by Torah law; thus she does not fall to levirate marriage by Torah law, but is merely his brother’s divorcee.

In what case is this statement said,

that the Rabbis concede to Rabbi Elazar?

When he divorced her while she was a minor and took her back

to him

while she was a minor.

But

if he

divorced her while she was a minor and took her back when she was an adult,

since by taking her back then he betroths her by Torah law—

Alternatively,

if he

took her back while she was a minor, and she reached majority while living with him, and he died,

since his betrothal took effect by Torah law, as we say that the first intercourse he had with her after she reached majority is presumed to constitute betrothal by Torah law, and afterward the husband who took her back through a betrothal valid by Torah law died, so that she falls before his brother—

she either performs halitza or enters into levirate marriage.

They said in the name of Rabbi Elazar: She performs halitza but does not enter into levirate marriage.

This proves that the Mishna first brought the Rabbis’ concession to Rabbi Elazar concerning an orphan during her father’s lifetime, because Rabbi Elazar issued a decree concerning all divorcees whom their husbands took back, that they may not enter into levirate marriage because of an orphan during her father’s lifetime. The Rabbis said regarding this that although they concede to him with regard to an orphan during her father’s lifetime, they disagree with his decree concerning all divorcees whom their husbands took back.

Rava asked Rav Naḥman:

A woman whom her husband divorced and then took back—according to Rabbi Elazar, if her husband dies she may not enter into levirate marriage because of a decree, lest people perform levirate marriage with an orphan during her father’s lifetime whom her husband took back—

what is the status of her rival wife,

the wife of that woman, whom the husband did not divorce but who remained married to him throughout—

what

is her status?

He said to him,

Rav Naḥman said to him:

She herself,

the woman who was divorced and taken back, is prohibited from entering into levirate marriage only by virtue of a

decree

of the Sages.

And

why should

we arise and issue a decree

that her rival wife should likewise not enter into levirate marriage, making this matter

a decree concerning a decree?

And we challenge Rav Naḥman:

But it was taught: They said in the name of Rabbi Elazar,

with regard to one who took back his divorcee and then died:

She and her rival wife perform halitza!

And we examine this: Is it conceivable that

she and her rival wife,

that both of them perform halitza? It is sufficient for one of them to perform halitza in order to release her rival wife.

Rather, is it not

that this is how the baraita should be emended:

Either she or her rival wife performs halitza!

But it is evident that they issued a decree concerning the rival wife of one who took back his divorcee, that she may not enter into levirate marriage, contrary to Rav Naḥman!

And we answer: Is it not the case that

you are merely emending

the baraita, whose wording is not intact and requires emendation?

If so,

emend

it as well, and amend the wording of the baraita so that

this

is what it teaches, in accordance with Rav Naḥman:

She,

the divorcee herself whom her husband took back,

performs halitza

but does not enter into levirate marriage because of the decree concerning an orphan during her father’s lifetime.

Whereas

her rival wife—

she either performs halitza or enters into levirate marriage.

For we do not issue a decree concerning a decree.

Mishna:

a.

Two brothers

who were

married to two sisters,

orphans,

minors,

whose marriages were valid only by rabbinic enactment.

And the husband of one of them died,

and she falls before his brother for levirate marriage [by rabbinic enactment], as his wife’s sister [by rabbinic enactment]—

she

must leave because of “a wife’s sister”,

by rabbinic enactment, and she requires neither halitza nor levirate marriage.

And likewise,

the same law applies to two brothers who were married to

two deaf-mutes,

whose legal status is like that of minors.

b. However, if two brothers were married to two sisters, one

an adult,

whose marriage is valid by Torah law,

and

the other

a minor,

whose marriage is valid only by rabbinic enactment, then—

if

the husband of the minor died—

the minor must leave because of

the forbidden relation of

a wife’s sister

by Torah law, and she is exempt from both halitza and levirate marriage.

However, if

the husband of the adult died—

she now falls before the husband of the minor sister, as a yevama by Torah law, while being his wife’s sister only by rabbinic enactment.

We must now determine the status of the two sisters—

The adult sister, the yevama who falls from the deceased brother before the surviving brother, is not exempt from halitza and levirate marriage under the Torah prohibition of a wife’s sister, since she is only a wife’s sister by rabbinic enactment.

Rather, she is prohibited to him in levirate marriage only by rabbinic enactment, because she is his wife’s sister by rabbinic enactment.

As for the minor wife of the surviving brother, she is the sister of a woman who is obligated to enter into levirate marriage by Torah law, and her status depends on the question of whether the relatives of a yevama become prohibited to the yavam when the yevama is bound and awaiting levirate marriage.

According to the one who says, “there is a bond,” the bond between the yavam and his yevama is considered a marital connection [by Torah law], to the extent that the Sages prohibited the yevama’s relatives to the yavam [and likewise the yavam’s relatives to the yevama].

According to this view, the minor sister, the wife of the surviving brother, becomes prohibited to him under the law of “the sister of one’s yevama.”

But according to the one who says, “there is no bond,” since by Torah law the bond between the yevama and the yavam is not considered a marital connection, the Sages did not prohibit the yevama’s relatives to the yavam, and the minor wife of the yavam is not prohibited to him as the sister of one’s yevama.

Three opinions were stated regarding this law:

The first opinion:

Rabbi Eliezer says:

The minor wife cannot remain with him, since she is prohibited to him as “the sister of one’s yevama.”

Therefore,

we instruct the minor to refuse him,

her husband, thereby uprooting her marriage from that point onward retroactively. The yavam can then perform levirate marriage with her sister, who falls before him for levirate marriage by Torah law.

For after the refusal, she is subject to no prohibition as a wife’s sister, not even by rabbinic enactment. This is as we learned: after refusal, all the marital-proximity prohibitions between the husband and wife lapse, since refusal retroactively uproots her betrothal, and she is considered as one who was never married to him at all.

The second opinion:

Rabban Gamliel says:

We do not instruct her to refuse, since she is permitted to remain with him. For in his view there is no prohibition of “the sister of one’s yevama,” as Rabban Gamliel holds that “there is no bond.”

Rather,

if she refused

on her own,

she has refused,

and then her elder sister may enter into levirate marriage.

And if not,

if she did not refuse on her own,

the minor wife should wait

with him

until she reaches majority.

And

when she reaches majority and her marriage becomes valid by Torah law,

the other one must leave,

her sister, the yevama,

because of

the forbidden relation of

a wife’s sister,

and she leaves without halitza.

But he may not perform halitza with the yevama’s sister before his wife reaches majority, because then his wife would become prohibited to him as “the sister of his halutza.”

The third opinion:

Rabbi Yehoshua says:

There is no remedy for either of the sisters with regard to him.

Rabbi Yehoshua holds that “there is a bond,” and his wife is prohibited to him as the sister of his yevama. He must divorce her with a bill of divorce, and then her elder sister becomes prohibited to him as “the sister of his divorcee” [by rabbinic enactment].

And

woe [

alas]

to him because of his wife,

and

woe [

alas]

to him because of his brother’s wife.

He divorces his wife with a bill of divorce, and his brother’s wife with halitza.

According to Rabbi Yehoshua, we do not instruct her to refuse, because he holds that one should distance oneself from refusals.

Gemara:

We learned in the Mishna the opinion of Rabbi Eliezer, that we instruct his minor wife to refuse her husband.

And we challenge this:

Is it permitted

to instruct the minor to refuse her husband!?

But bar Kappara taught: A person should always adhere to three things and distance himself from three things:

He should adhere to three things: to halitza, to bringing

peace, and to the annulment of vows,

as will be explained below.

And he should distance himself from three things: from refusal, from deposits, and from guarantees [

so that he will not become a guarantor], as will be explained below!

And we answer: Here, since it is

a refusal for the sake of a mitzva,

for the purpose of fulfilling the mitzva of levirate marriage by Torah law—

it is different!

With regard to the matter itself, bar Kappara taught: A person should always adhere to three things:

To halitza

and not to levirate marriage—

in accordance with Abba Shaul.

As it was taught in a baraita, Abba Shaul says: One who consummates levirate marriage with his yevama for the sake of beauty,

or

for the sake of marriage,

or

for the sake of some other matter,

rather than for the sake of fulfilling the mitzva of levirate marriage, is

as though

he were

engaging in a forbidden relation,

with a brother’s wife.

And it is nearly certain in my eyes that the child

born from this levirate marriage is

illegitimate.

To bringing peace—

as it is written

in the book of Psalms [chapter 34]:

“Seek peace and pursue it!”