Yevamot 35b (לה:) — the Talmud in English

The Sages instituted two protective enactments concerning a woman who has undergone ḥalitza:

One enactment is that she is considered, rabbinically, as though she had been the wife of the one who performed ḥalitza, with regard to his being forbidden to her relatives—those relatives who would have been forbidden to him had she actually been his wife—and likewise she is forbidden to his relatives—those relatives who would have been forbidden to her had she actually been his wife.

The second enactment is that a woman who has undergone ḥalitza is forbidden to the priesthood.

Earlier, on folio 24a, the source of the prohibition of a ḥalutza to the priesthood was explained. It is merely an asmachta from the verse, “And a woman divorced from her husband they shall not take,” where the ḥalutza was included through the letter vav, so that she is forbidden to a priest like a divorcee. But this derivation is merely an asmachta, and she is forbidden to the priesthood only by rabbinic law.

These two enactments, together with the related decrees, are explained below in the Mishna:

Mishna:

One who performs ḥalitza

after the fact

with his yevama, and she is found to be pregnant,

without his knowing that she was pregnant,

and she gives birth:

When the child is viable,

it is thereby clarified at the time of the birth that she was the wife of a brother who had children. It is clarified that she had not been subject to the yavam, and her ḥalitza is not valid.

Therefore, the two enactments that the Sages instituted concerning ḥalitza do not apply here. Rather:

a.

He,

the one who performed ḥalitza,

is permitted to her relatives.

He is not forbidden to them by virtue of the enactment that one who performs ḥalitza with his yevama is forbidden to her relatives, because her ḥalitza is of no effect.

And

for the same reason, she too

is permitted to his relatives.

b.

And

likewise, she

is not disqualified

by the ḥalitza that he performed with her

from the priesthood.

She is not disqualified because of the enactment that a ḥalutza is forbidden to a priest, since she gave birth to a viable child, and it became clear that she did not require ḥalitza. The act of ḥalitza that he performed is of no effect!

But if

the child is not viable,

as it was a stillborn child, and it is now clarified that she was subject to ḥalitza, the two enactments that the Sages instituted concerning a ḥalutza apply to her—

a. He is

forbidden to her relatives,

as is the law concerning one who performs ḥalitza with a yevama.

And she is forbidden to his relatives,

as is the law concerning a yevama who underwent ḥalitza.

b.

And she is disqualified from the priesthood,

with the rabbinic disqualification of a ḥalutza.

The Mishna now explains the law concerning a yavam who has relations with his yevama while she is pregnant:

A yavam is forbidden to have relations with his yevama until three months have passed since the brother’s death, lest she be pregnant and his brother have a child, in which case she is forbidden for yibbum.

But after three months, he is permitted to perform yibbum with her, since in most women the pregnancy is discernible by the third month of pregnancy.

One who consummates the levirate marriage with his yevama

after the fact, within three months,

and she is found to be pregnant,

without either of them knowing that she was pregnant,

and she gives birth

to a child.

When the child is viable,

it is thereby clarified that she was the wife of a brother who had children, and she had been forbidden to the yavam by the erva prohibition of a brother’s wife who was not permitted for yibbum. Therefore—

He shall remove her

the yavam shall separate her from him.

And they are liable,

he and she,

to a sin-offering

for an inadvertent transgression: engaging in intercourse with a brother’s wife where there is no mitzva of yibbum.

But if the child is not viable—

He shall retain

the yavam shall retain his yevama as his wife.

The Mishna explains another law:

If the child was born as a

doubt,

whether he is

a nine-month

child of gestation and belongs

to

the

first

brother who died—in which case it is found that he had children and she is not subject to yibbum—

a doubt

whether he is

a seven-month

child of gestation and belongs

to

the

last

brother, in which case it is found that the deceased brother had no children and she is subject to yibbum—

He shall remove her,

the living brother shall separate from the deceased brother’s wife with whom he performed yibbum, because perhaps she did not require yibbum, and she is forbidden to him as the wife of a brother who had children.

And the child is fit,

in either event, whether he is the first brother’s son or the second brother’s son.

And they are liable,

the brother and the woman,

to a provisional guilt-offering,

because perhaps the child born is the first brother’s son, in which case she had been forbidden to him as the wife of a brother who had children.

Gemara:

The Mishna explained that ḥalitza performed during the intermediate period, while she is pregnant, is considered valid ḥalitza—if the yevama miscarried her child—with regard to the two enactments that the Sages instituted concerning a ḥalutza:

a. The relatives of the one who performed ḥalitza are forbidden to the ḥalutza, and the relatives of the ḥalutza are forbidden to the one who performed ḥalitza.

b. The ḥalutza is disqualified from the priesthood.

But the Mishna did not clarify whether this ḥalitza also served to permit the yevama to marry outside the levirate bond. Rabbi Yoḥanan and Reish Lakish disagree about this.

It was stated: One who performs ḥalitza with a pregnant woman, and she miscarries—

Rabbi Yoḥanan said: She does not require ḥalitza from the brothers,

because her ḥalitza while she was pregnant was valid ḥalitza, since once she miscarried it became retroactively clear that she had been fit for ḥalitza.

Reish Lakish said: She requires ḥalitza from the brothers,

because the ḥalitza of a pregnant woman is not valid ḥalitza.

The Gemara explains:

Rabbi Yoḥanan said, she does not require ḥalitza from the brothers,

because Rabbi Yoḥanan held that

the ḥalitza of a pregnant woman is called ḥalitza, and intercourse with a pregnant woman is called intercourse—

if it is subsequently clarified that her fetus was a stillborn child.

And Reish Lakish said, she requires ḥalitza from the brothers,

because he held that

the ḥalitza of a pregnant woman is not called ḥalitza, and intercourse with a pregnant woman is not called intercourse.

The Gemara asks:

In what

is the reason that

they disagree,

Rabbi Yoḥanan and Reish Lakish?

And we answer:

If you wish, say

that they disagree regarding a

verse,

through a derivation from Scripture.

And if you wish, say

that they disagree regarding

reasoning.

The Gemara first explains their disagreement on the basis of reasoning:

If you wish, say

that they disagree regarding this

reasoning

:

Rabbi Yoḥanan holds:

After she miscarried, it became clear that the only thing lacking for us when she was pregnant was knowledge that she would miscarry.

Had we indeed possessed this knowledge while she was pregnant, she would have been able to perform ḥalitza, and even to undergo yibbum, while still pregnant!

For

if Elijah were to come and say

to us while she was pregnant,

that indeed

the fetus

with which she conceived

will certainly be miscarried,

that she is destined to miscarry it—

Would

she not

be fit for ḥalitza and yibbum

even while she was pregnant!?

And if so,

now too,

even though at the time of the pregnancy it was not known that she would miscarry her child, and this became known only when she miscarried, nevertheless we should say that

the matter will be revealed retroactively:

it will become clear retroactively that she had indeed been fit for ḥalitza while pregnant, and the ḥalitza that the yavam performed with her during her pregnancy was effective in permitting her to marry outside the levirate bond, so she does not need to perform ḥalitza again.

And Reish Lakish said: “The matter will be revealed retroactively”—

we do not say this!

And if you wish, say that they disagree regarding the exposition of a

they disagree about the interpretation of

verse.

Rabbi Yoḥanan holds: [Deuteronomy 25]

[Deuteronomy 25]

“And he has no son,” the Merciful One stated, and this man has no son

! It makes no difference whether this fact was known at the time of the pregnancy.

For what difference does it make to us that the matter was not known at the time of the pregnancy? Now it is known that this brother had no son, and she required ḥalitza; therefore the ḥalitza that the yavam performed with her while she was pregnant was effective.

And once she has already undergone ḥalitza, the brothers no longer need to perform ḥalitza with her.

And Reish Lakish holds:

The verse says

“And he has no son,”

the verse could have said, “and he has no child,” but it says, “and he has no son,” to teach you:

Examine him

to determine whether he has a son!

That is, as long as the deceased man’s wife is pregnant, there is room for “examination” as to whether he has a son. During that period of “examination” she cannot perform ḥalitza, because she is in a state requiring “examination.”

And even if in the end it becomes clear that he has no son, this does not constitute a revelation concerning the period of examination, since the very uncertainty whether he has a son requires him to act, because of the doubt, as though he has a son.

Therefore, the ḥalitza that she underwent while pregnant is not effective for her.

The Gemara now presents how Rabbi Yoḥanan and Reish Lakish raised two objections to one another from our Mishna: one objection from the first clause and a second objection from the latter clause.

It also explains how each of them answered according to his own position.

However, two versions are given for each objection: whether the one raising the objection was Rabbi Yoḥanan and the one answering was Reish Lakish, or conversely, whether the one raising the objection was Reish Lakish and the one answering was Rabbi Yoḥanan:

The first objection, from the first clause of the Mishna:

Rabbi Yoḥanan raised an objection to Reish Lakish

from the first clause of our Mishna: One who performs ḥalitza with his yevama, and she is found to be pregnant, if

the child is not viable—

he is forbidden to her relatives, she is forbidden to his relatives, and she is disqualified from the priesthood.

Rabbi Yoḥanan proves his objection against Reish Lakish from the disqualification from the priesthood:

Granted, according to me, who say that the ḥalitza of a pregnant woman is called ḥalitza—

that is why she is disqualified

from the priesthood when he performed ḥalitza with her.

But according to you, who say that the ḥalitza of a pregnant woman is not called ḥalitza—

why did he disqualify

the yavam

from the priesthood

through his ḥalitza?

He said to him,

Reish Lakish said: This disqualification does not derive from the asmachta through which the Sages learned to disqualify a ḥalutza like a divorcee.

Rather, it is only a disqualification

by rabbinic law;

it is

merely a stringency

that they decreed concerning her: that she be disqualified from the priesthood through the ḥalitza performed with her while pregnant, because of observers who would not know that she had been pregnant, see a ḥalutza marrying a priest, and come to err and say that a ḥalutza is permitted to a priest.

This objection was stated in another version, in the reverse form:

Some say

that, conversely, the objection was raised from the first clause of the Mishna.

It was not Rabbi Yoḥanan who raised the objection from it against Reish Lakish; rather, Reish Lakish raised it against Rabbi Yoḥanan!

Reish Lakish raised an objection to Rabbi Yoḥanan,

from our Mishna:

One who performs ḥalitza with his yevama, and she is found to be pregnant, if

the child is not viable—

he is forbidden to her relatives, she is forbidden to his relatives, and she is disqualified from the priesthood.

Reish Lakish infers as follows:

Granted, according to me, who say that the ḥalitza of a pregnant woman is not called ḥalitza—

it is well;

this is why it teaches

that through his ḥalitza she is

“disqualified from the priesthood.”

And this disqualification is

as a stringency

alone, because of observers, so that they should not err and permit a ḥalutza to a priest.

But it does not teach

our Mishna explicitly the fundamental law that

“she does not require ḥalitza from the brothers.”

Since according to my position the law is not so: her ḥalitza was not effective, and she still needs to perform ḥalitza after she miscarries in order to be permitted to marry outside the levirate bond.

But according to you,

Rabbi Yoḥanan, who hold that the ḥalitza of a pregnant woman is valid ḥalitza, why does the tanna mention in the Mishna only the law that her ḥalitza disqualifies her from the priesthood?

According to your words, the fundamental law—that her ḥalitza is valid, and

“she does not require ḥalitza from the brothers”—

should have been stated,

the tanna should have taught it to us!

We would know on our own that since she underwent valid ḥalitza, the laws of a ḥalutza apply to her: she is forbidden to his relatives and disqualified from the priesthood.

He said to him:

Rabbi Yoḥanan said to Reish Lakish:

That is indeed so!

Indeed, according to my position, the tanna should have stated that her ḥalitza while pregnant is valid ḥalitza and that she no longer requires ḥalitza from the brothers.

As for the fact that the tanna mentioned only the disqualification from the priesthood and did not state the fundamental law that she does not require ḥalitza from the brothers—

Since he taught in the first clause: “One who performs ḥalitza with his yevama and she is found to be pregnant, and she gives birth to a viable son,

“A man who performs halitza with his yevama and she is found to be pregnant, and she gives birth to a viable son;” there the tanna could not say, “and she requires halitza,” because she gave birth to a viable son—

does not disqualify her

from the priesthood,” and there the tanna could not say, “and she requires ḥalitza,” since she gave birth to a viable son—

he taught

also

the latter clause

on the same subject of disqualification from the priesthood, and said that if the child was a stillborn child,

“he disqualifies her

from the priesthood.” He did not discuss the matter of ḥalitza, since it was not mentioned in the first clause.

But this is not merely a stringency; it follows from the fundamental law. Since her ḥalitza was valid, she no longer requires ḥalitza from the other brothers.

The Gemara now presents the second objection, from the latter clause of the Mishna, and states it in two versions, in reverse form, as with the objection from the first clause:

Rabbi Yoḥanan raised an objection to Reish Lakish

from the latter clause of the Mishna:

We learned: One who consummates the levirate marriage with his yevama and she is found to be pregnant, when the child is viable, he shall remove her.

And if

the child is not viable—

he shall retain

the yevama.

Rabbi Yoḥanan infers:

Granted, according to me, who say that the ḥalitza of a pregnant woman is called ḥalitza and intercourse with a pregnant woman is called intercourse—

that is why it teaches

well: if the child is not viable,

he shall retain

the yevama!

The meaning of “he shall retain” is an expression of permission to retain her, in contrast to the language of prohibition stated previously, that if the child is viable, he shall remove her!

That is, he is permitted to retain her, since he had relations with her and acquired her while she was pregnant. Now that she has miscarried, he may continue to retain her as his wife in every respect; and if he wishes to divorce her, he may do so by means of a get alone.

But according to you, who say, “the ḥalitza of a pregnant woman is not called ḥalitza, and intercourse with a pregnant woman is not called intercourse,”

it follows that the yavam did not acquire her through his intercourse when she was pregnant, and she is still not his wife.

And if so, it is not appropriate to say the expression “he shall keep her,” for there is nothing for him to keep; rather,

“he must have intercourse with her again, and then keep her”—

mibayei lei

the tanna should have said!

And we answer: Reish Lakish said:

What is the meaning of “he shall keep her”

that the tanna said?

He did not intend what you said, that “he shall keep her” means that he is permitted to continue keeping her as his wife.

Rather, the tanna said “he shall keep her” as an expression of obligation, namely,

he must have intercourse with her again

after she miscarries,

and

only through this

“shall he keep”

her.

That is, the “keeping” mentioned here [through an additional act of intercourse] is not permission to continue keeping her, but rather an obligation—

for it is not sufficient

to treat her as his wife in every respect and release her to the outside world with a bill of divorce alone, without having intercourse with her a second time.

For she cannot be considered his yevama by virtue of the first act of intercourse, since intercourse with her while she was pregnant does not acquire her.

Likewise, he cannot now release her through chalitza alone, since in any event he had intercourse with her while she was pregnant, and she cannot go out to the outside world without a bill of divorce.

But a bill of divorce cannot release her, since she is still not his wife in every respect, such that she can be released through a bill of divorce.

Therefore, he is obligated to have intercourse with her again after she miscarries, in order to acquire her through this act of intercourse.

Alternatively, we present the difficulty in the reverse manner:

There are those who say,

that Reish Lakish is the one who challenged Rabbi Yohanan from the latter clause:

Reish Lakish raised an objection to Rabbi Yohanan

from the latter clause of our Mishna:

If the offspring is not viable—

he shall keep her!

And Reish Lakish infers:

Granted, according to my position, for I say

“the chalitza of a pregnant woman is not considered chalitza, and intercourse with a pregnant woman is not considered intercourse”—

that is well;

this is why it teaches “he shall keep her,”

whose meaning is:

he must have intercourse with her again, and then keep her—

for it is not sufficient otherwise!

He must have intercourse with her again after she miscarries in order to keep her or to release her with a bill of divorce.

But according to you,

that his intercourse with her or his chalitza with her while she is pregnant is effective [if she subsequently miscarries her fetus], and from that point she is already a woman who underwent chalitza or a yevama—

why did the tanna use the obligatory expression “he shall keep her”?

After all, the yevam now has no obligation to keep her; rather, if

he wishes, he shall release her

with a bill of divorce, like any woman, and if

he wishes, he shall keep her

with him—this is what

mibayei lei

the tanna should have said!

And Rabbi Yohanan answers:

Indeed,

according to my position, the tanna should indeed have formulated it in that manner.

And the reason he did not state it in that formulation is

because,

since

the tanna taught the first clause

at the beginning of his words, that one who consummates levirate marriage with his yevama and she is found to be pregnant, when the fetus is viable,

“he shall release her!”

and there it is an obligation to release her—

he also taught

in the

latter clause

of his words, where the fetus is a miscarriage,

“he shall keep her!”

in the language of obligation.

But the meaning is not that he is obligated to keep her; rather, if he wishes, he may release her, and if he wishes, he may keep her.

And now the Gemara raises a difficulty from a beraita against Rabbi Yohanan:

The meitivi

against Rabbi Yohanan is from that which was taught:

One who consummates levirate marriage with his yevama, and she is found to be pregnant—

her rival wife may not marry, lest the fetus be viable.

But the wording of the beraita as it stands is puzzling, for

on the contrary, when the fetus is viable—

her rival wife is exempt!

For if she has a child, neither she nor her rival wife requires chalitza, since the deceased brother has a child!

Rather,

necessarily,

say

that the beraita should be stated as follows:

One who consummates levirate marriage with his yevama and she is found to be pregnant—her rival wife may not marry,

lest the fetus not be viable,

and it turns out that she is subject to levirate marriage, while intercourse with a pregnant woman is not considered intercourse for the acquisition of levirate marriage.

And if it should enter your mind

that Rabbi Yohanan holds that

intercourse with a pregnant woman is considered intercourse

for levirate marriage, then here, once the yevam consummated levirate marriage with his yevama—

why may her rival wife not marry?

The rival wife should be exempt

through

the intercourse with her fellow wife!

Abaye said: With regard to intercourse—

everyone agrees that it does not exempt

the rival wife.

When do they disagree—

with regard to chalitza.

Rabbi Yohanan holds: The chalitza of a pregnant woman is considered chalitza; intercourse with a pregnant woman is not considered intercourse.

Reish Lakish holds: Intercourse with a pregnant woman is not considered intercourse, and the chalitza of a pregnant woman is not considered chalitza.

He said to him,

in astonishment and as a question,

Rava

to Abaye: According to your words, with regard to Rabbi Yohanan, who distinguishes between intercourse with a pregnant woman and her chalitza, the following difficulty arises:

whichever way you look at it:

If intercourse with a pregnant woman is considered intercourse—

the chalitza of a pregnant woman is considered chalitza.

And if intercourse with a pregnant woman is not considered intercourse—

the chalitza of a pregnant woman should likewise not be considered chalitza.

For we have established: