Yevamot 36a — the Talmud in English

For any

yevama

who is fit for yibbum,

and her intercourse exempts her from halitza, and likewise her rival-wife

is fit for halitza,

and she exempts her rival-wife as well through her halitza.

And

if

every

yevama

who is not fit for yibbum,

and her intercourse does not help to exempt her and her rival-wife from halitza

is not fit for halitza,

and she has no power to exempt either herself or her rival-wife.

And a pregnant woman, who is not fit for yibbum, according to your words in the position of Rabbi Yohanan, how is she fit for halitza, to exempt herself and her rival-wife!?

Rather, Rava said,

the beraita must be reconciled, so that it should not present a difficulty against Rabbi Yohanan, that

this is what it says

the tanna in the beraita:

One who took his yevama in yibbum, and she was found to be pregnant—

a.

She may not marry her rival-wife

outside the levirate bond,

lest the offspring be viable.

b.

And intercourse with a pregnant woman

whose offspring is viable

is not called intercourse

of yibbum, so that she can leave him only through a bill of divorce, but not so that she exempts her rival-wife from halitza.

And

likewise

the halitza of a pregnant woman

whose offspring is viable

is not called halitza

in order to permit her to marry outside the levirate bond, nor in order to exempt her rival-wife.

c.

And the offspring,

when it is viable,

does not exempt [

it does not permit the yevama to marry outside the levirate bond ]

until it emerges into the air of the world.

But intercourse with a pregnant woman who miscarried her offspring is intercourse of yibbum, and she no longer requires halitza. From this point onward, she leaves him through a bill of divorce.

It was taught in a beraita in accordance with Rava,

that only if the offspring is viable does the intercourse not help her, but if she miscarried, her intercourse is intercourse of yibbum:

For it was taught:

One who took his yevama in yibbum, and she was found to be pregnant—

she may not marry her rival-wife,

because

lest the offspring be viable.

And neither intercourse nor halitza

of a pregnant woman whose offspring is viable

exempts, but

only the

offspring exempts.

And the offspring does not exempt her—

until it emerges into the air of the world!

The Gemara infers from this beraita as Rava did:

It is implied by the beraita that

the reason,

the reason that the intercourse with a pregnant yevama is not effective, is

that lest the offspring be viable!

For then she is not exempted through her halitza or through her intercourse, but only through the birth of the offspring, and the offspring does not exempt until it is born.

If the offspring is not viable—

her rival-wife is exempted

through the intercourse with the pregnant woman, and there is no need for him to return and have intercourse with his yevama after she gives birth, in order to take her in yibbum and thereby exempt her rival-wife.

And this proves Rava’s words, according to Rabbi Yohanan.

But since this beraita proves the position of Rabbi Yohanan, the Gemara discusses:

Shall we say, let there be

this beraita

a refutation of Reish Lakish,

who said that intercourse with a pregnant woman who miscarried is not intercourse, and her halitza is not halitza!?

Reish Lakish can say to you:

The beraita does not teach, “lest the offspring be viable,” so that you should infer from it against me. Rather, it teaches, “lest the offspring not be viable.”

And

this is what it teaches

in this beraita:

One who took his yevama in yibbum, and she was found to be pregnant—

she may not marry her rival-wife, lest the offspring not be viable.

And the halitza of a pregnant woman

whose offspring is not viable

is not called halitza, and intercourse with a pregnant woman is not called intercourse.

And one must be concerned lest the offspring not be viable.

The beraita adds:

And if you say, follow the majority of women, and most women give birth to a proper offspring

and do not miscarry, and if so, let us rely on the majority to say that the offspring is viable, and it follows that the dead man has a son, and she does not require a yavam at all, and she should be permitted to marry immediately!

Concerning this the beraita answers:

An offspring does not exempt until it emerges into the air of the world.

Below the Gemara brings that the halakha follows Reish Lakish concerning intercourse and halitza with a pregnant woman.

Rabbi Elazar said:

Is it

possible

that

this statement of Reish Lakish exists,

that we rule according to him, that the intercourse and halitza of a pregnant woman have no effect,

and we did not teach it

according to his words

in the Mishna,

in one of the Mishnayot?

He went out,

Rabbi Elazar went out,

he examined,

he analyzed,

and found,

and found a Mishna according to the words of Reish Lakish.

For we learned

in the final chapter [119a]:

A woman whose husband went away [

who had no sons ]

and her rival-wife went to an overseas country, and they came and said to her, “Your husband has died”—

she may not marry

outside the levirate bond [and the Gemara has now left it as referring even not through halitza],

and she may not be taken in yibbum

by the yavam—

until she knows whether her rival-wife is pregnant.

For if her rival-wife gives birth to a viable son, then both her rival-wife and she are forbidden to the yavam because of the wife of a brother who has children.

And if her rival-wife miscarries, then both her rival-wife and she are forbidden to marry outside the levirate bond without halitza.

And since it was not known whether her rival-wife was pregnant or not, she may not marry outside the levirate bond.

And Rabbi Elazar infers:

Granted, she is not taken in yibbum

they do not take her in yibbum, because of the concern that her rival-wife is pregnant, for

lest the

perhaps the

offspring

of her rival-wife

be viable,

and the yevama is forbidden to the yavam according to the law of a wife who has children,

and

if he has intercourse with her,

the yavam will encounter

the yavam

a Torah prohibition of the wife of a brother.

Rather, she should not undergo halitza—

why

should she not undergo halitza and thereby become permitted to marry outside the levirate bond!?

Granted, let her undergo halitza within nine

months from the time that they informed her that her husband had died,

and marry within nine

of these months—

that is well,

not

do we say that she should do so.

For

that is the doubt,

whether her rival-wife is pregnant or not, and it is impossible to permit her to marry outside the levirate bond, because perhaps her rival-wife is pregnant with a viable offspring, and neither halitza nor yibbum exempts her in that case, but only the offspring does. And the offspring does not exempt until it emerges into the air of the world.

Rather,

why not

let her undergo halitza within nine, and marry after nine!?

For after nine months from her husband’s death, in any event she will be permitted to marry outside the levirate bond, if she undergoes halitza:

If her rival-wife was pregnant and did not miscarry, but gave birth to a viable offspring, she is properly permitted to marry outside the levirate bond, since she does not require halitza.

And if she miscarried, her halitza within the nine months will be effective for her, according to the law of the halitza of a pregnant woman, which is effective according to Rabbi Yohanan.

Rather, from here there is proof according to Reish Lakish, that the intercourse and halitza of a pregnant woman, even if she miscarries, are of no effect!

But the Gemara raises a difficulty against Rabbi Elazar, who brings proof from the fact that she does not undergo halitza within nine and marry after nine, that halitza is not halitza even if she miscarries:

And according to your reasoning,

that she should not undergo halitza because perhaps her rival-wife is pregnant, and halitza is not effective then, according to your words as well there is a difficulty:

Why should she not

undergo halitza

after nine months, when it is already clear that her rival-wife is not pregnant,

and marry after nine

months!

And why, according to your words, should she not marry until she knows whether her rival-wife was pregnant at the time of her husband’s death or not!?

Rather, that beraita is excluded from the matter

the beraita!

Necessarily, you cannot bring proof from this beraita for Reish Lakish, and if you wish to bring proof, bring another proof apart from this beraita, for the reason of the beraita is not concern over permitting the yevama to marry outside the levirate bond, but another concern:

For Abaye bar Avin and Rav Hinnana bar Avin both said:

She must wait and not undergo halitza in order to marry until she knows what the status of her rival-wife was at the time of her husband’s death, for

perhaps the offspring will be

of her rival-wife

viable,

and then it will become clear that this woman’s halitza was unnecessary, and it is not halitza, and she is fit for the priesthood.

But since people saw her halitza, they will regard her as a woman who underwent halitza, who is disqualified from the priesthood,

and you will find that you require a proclamation

that will proclaim concerning her that she is fit

for the priesthood.

And we raise the difficulty:

And let her require

a proclamation that she is fit for the priesthood, and let us permit her to marry after nine months, when she undergoes halitza, and not delay her from marrying until she knows whether her rival-wife was pregnant or not.

And we answer: The Sages instituted that she should not marry until she knows whether her rival-wife is pregnant,

lest there be someone who was present at the halitza

and saw her undergo halitza

but was not present at the proclamation.

And he will come to say,

and will come to say when he later sees her married to a priest:

They permitted

a

woman who underwent halitza to a priest.

He said

he raised this difficulty

to him, Abaye,

to Rabbi Elazar, who brings proof for Reish Lakish from the beraita, that she should not undergo halitza or be taken in yibbum until she knows whether her rival-wife was pregnant:

Does it teach

the beraita

“she may not undergo halitza and she may not be taken in yibbum”

in the beraita, so that you can infer from it that the halitza and intercourse of a pregnant woman are not halitza and not intercourse!?

It teaches, “she may not marry and she may not be taken in yibbum”

in the beraita, and the matter concerns

without halitza,

and the beraita teaches that she may not rely on the majority, that most women give birth to sons or daughters, and that she is permitted to marry without halitza.

But if he performs halitza for her

even within nine months,

so too she is permitted

to marry after the nine months [but not within nine, because perhaps the offspring is viable, and it does not exempt until it emerges into the air of the world], for then, in either event, she is permitted.

And the beraita can accord with the words of Rabbi Yohanan, that the halitza of a pregnant woman who ultimately miscarried is valid [and likewise her intercourse].

And the Gemara brings:

It was taught—

in accordance with Reish Lakish:

For it was taught:

One who performs halitza with a pregnant woman, and she miscarries—

she requires halitza from the brothers!

Rava said: The halakha is in accordance with Reish Lakish in these three

laws that follow:

One: this which we said,

that the halitza and intercourse of a pregnant woman are not halitza and intercourse of yibbum.

The other,

this

which we learned:

A person

who apportions

his

property

to his heirs

according to his word,

who commanded this and wrote the matter in a deed of instruction, as an apportionment of his property during his lifetime as a gift from him, according to the words of his mouth, and not as ordinary inheritance, for he did not write, “So-and-so my son shall inherit this, and so-and-so my son shall inherit that”—

if he

increased

property

for one, and diminished

property

for another, and made the firstborn equal to them,

so that he would not take a double portion—

his words stand.

For a person is permitted to apportion his property during his lifetime as he wishes.

And if he said,

he wrote in the deed of instruction that this apportionment is

because of inheritance,

such as when he wrote in the deed, “This field my son shall inherit, and another field my other son shall inherit,” so that his sons would inherit him by way of inheritance—

he has said nothing.

Since Torah law is that the firstborn son inherits a double portion, and the ordinary brothers divide equally, and he cannot uproot Torah law.

And if he

wrote

the language of a gift in the deed, in addition to the language of inheritance, it is a deed of gift, and his words stand.

Whether

he wrote the language of the gift

at the beginning,

such as when he wrote, “This field shall be given to so-and-so my son, and he shall inherit it.”

Whether

he wrote the language of the gift

at the end,

such as, “So-and-so my son shall inherit this field, and it shall be given to him.”

Whether

he wrote

in the middle

“So-and-so shall inherit this field, and it shall be given to him, and he shall inherit it,”

since he mentioned in the deed that he apportions his property

by way of a gift—

his words stand!