Yevamot 36a (לו.) — the Talmud in English

For any

yevama

who is fit for yibbum, and intercourse with her exempts her from chalitza, and likewise her rival wife—

she is fit for chalitza,

and

through her chalitza she exempts her rival wife as well.

And

if

every

yevama

who is not fit for yibbum, and intercourse with her does not help exempt her or her rival wife from chalitza—

she is

not fit for chalitza, and she has no power to exempt either herself or her rival wife.

and 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 view of Rabbi Yohanan, how can she be fit for chalitza, to exempt herself and her rival wife?!

Rather, Rava said:

The beraita must be reconciled so that it will not pose a difficulty to Rabbi Yohanan, for

this is what

the tanna of the beraita is saying:

If one consummated yibbum with his yevama, and she was found to be pregnant—

a.

She may not marry

outside the levirate bond,

lest the fetus be viable.

b.

And intercourse with a pregnant woman

whose fetus is viable—

is not considered intercourse

of yibbum, so that she can leave him only through a bill of divorce, and not so as to exempt her rival wife from chalitza.

And

likewise,

the chalitza of a pregnant woman

whose fetus is viable—

is not considered chalitza

for the purpose of permitting her to marry outside the levirate bond, nor for the purpose of exempting her rival wife.

c.

And the fetus,

when it is viable,

does not exempt

the yevama—

until it emerges into the air of the world.

However, intercourse with a pregnant woman who miscarried is intercourse of yibbum, and she no longer requires chalitza. Rather, from this point onward she leaves him through a bill of divorce.

It was taught in a beraita in accordance with Rava,

that intercourse is ineffective only if the fetus is viable; but if she miscarried, her intercourse is intercourse of yibbum:

As it was taught:

If one consummated yibbum with his yevama, and she was found to be pregnant—

She may not marry her rival wife,

because

perhaps the fetus will be viable.

And neither intercourse nor chalitza

with a pregnant woman whose fetus is viable

exempts, but only

the

fetus exempts.

And the fetus does not exempt her—

until it emerges into the air of the world!

The Gemara derives from this beraita as Rava did:

It is implied by the beraita that

the reason,

the reason that intercourse with a pregnant yevama is ineffective, is

that perhaps the fetus will be viable!

In that case she is not exempted through her chalitza or intercourse, but only through the birth of the fetus; and it does not exempt her until it is born.

If the fetus is not viable—

her rival wife is exempted

through intercourse with the pregnant woman, and it is unnecessary for him to have intercourse with his yevama again after she gives birth, in order to perform yibbum with her and thereby exempt her rival wife.

This proves Rava’s words, according to Rabbi Yohanan.

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

Shall we say, let this be

this beraita

a refutation of Reish Lakish,

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

Reish Lakish could say to you:

The beraita does not teach, “lest the fetus be viable,” so that you can derive a refutation of my view from it. Rather, it teaches, “lest the fetus not be viable.”

And

this is what

this beraita is saying:

If one consummated yibbum with his yevama, and she was found to be pregnant—

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

And the chalitza of a pregnant woman

whose fetus is not viable

is not considered chalitza, and intercourse with a pregnant woman is not considered intercourse.

And there is concern that perhaps the fetus will not be viable.

The beraita adds:

And if you say: Follow the majority of women, and most women give birth to a properly formed fetus,

and do not miscarry; if so, let us rely on the majority and say that the fetus is viable, in which case the deceased has a son, and she is not subject to the levirate bond at all, and she should be permitted to marry immediately—

The beraita responds:

A fetus does not exempt her until it emerges into the air of the world.

Below, the Gemara states that the halakha follows Reish Lakish concerning intercourse and chalitza with a pregnant woman.

Rabbi Elazar said:

Is it

possible

that

this ruling of Reish Lakish is indeed accepted,

that we rule in accordance with him, that intercourse and chalitza with a pregnant woman have no effect,

and we did not teach it

in accordance with his view

in the Mishna,

in one of the mishnayot?

He went out,

Rabbi Elazar went out,

examined,

investigated,

and found,

a Mishna in accordance with the words of Reish Lakish.

As we learned

in the final chapter [119a]:

A woman whose husband went away

who had no children

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

She may not marry

outside the levirate bond [and the Gemara now leaves aside the possibility even of doing so through chalitza],

and she may not perform yibbum

with the yavam—

until she knows whether her rival wife is pregnant.

For if her rival wife gives birth to a viable son, both the rival wife and this woman are forbidden to the yavam because of the prohibition of eshet ah whose husband has children.

And if her rival wife miscarries, both the rival wife and this woman are forbidden to marry outside the levirate bond without chalitza.

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

Rabbi Elazar derives:

Granted, she may not perform yibbum

because of the concern that her rival wife is pregnant, for

perhaps the

perhaps the

fetus

of her rival wife

will be viable,

and the yevama will be forbidden to the yavam like a wife whose husband has children;

and

if he has intercourse with her,

the yavam will encounter

the

the Torah prohibition of eshet ah.

But she may not perform chalitza—

why

should she not perform chalitza and thereby become permitted to marry outside the levirate bond?!

Granted, if she performs chalitza within nine

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

and marries within nine

of these months—

That would be

not

what we say she should do.

For

this is a 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 fetus, and neither chalitza nor yibbum exempts in that case; only the fetus does. And the fetus does not exempt until it emerges into the air of the world.

Rather,

why should she not

perform chalitza within nine months and marry after nine months?!

For after nine months from the death of her husband, she will certainly be permitted to marry outside the levirate bond if she performs chalitza:

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

And if she miscarried, her chalitza performed within the nine months is effective, like the chalitza of a pregnant woman, which is effective according to Rabbi Yohanan.

Rather, this is proof in accordance with Reish Lakish, that intercourse and chalitza with a pregnant woman are entirely ineffective, even if she miscarries!

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

But according to your reasoning,

that she should not perform chalitza because perhaps her rival wife is pregnant, in which case the chalitza is ineffective, a difficulty also arises according to your view:

Why should she not

perform chalitza

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, may 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 discussion

the beraita!

You necessarily cannot bring a proof from this beraita in support of Reish Lakish. If you wish to bring a proof, bring another proof, apart from this beraita, for the reason for the beraita is not concern that the yevama might be permitted to marry outside the levirate bond, but a different concern:

For Abaye bar Avin and Rav Ḥinnana bar Avin both say:

She must wait and not perform chalitza in order to marry until she knows what the status of her rival wife was at the time of her husband’s death, because

perhaps the fetus will be

of her rival wife

viable,

in which case it will become clear that this woman’s chalitza was unnecessary and is not chalitza, and she is fit to marry a koen.

However, since people saw her chalitza, they will regard her as a woman who underwent chalitza, who is unfit to marry a koen,

and you will find that you must arrange a public proclamation

announcing that she is fit

to marry a koen.

And we raise the difficulty:

And let her have

a proclamation that she is fit to marry a koen, and let us permit her to marry after nine months, once she performs chalitza, rather than delay her marriage until she knows whether her rival wife was pregnant or not.

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

lest there be someone who was present at the chalitza

and saw her undergo chalitza

but was not present for the proclamation.

And he might come to say,

when he later sees her marrying a koen:

They permitted

a

woman who underwent chalitza to marry a koen.

He said

raised this difficulty

to him, Abaye,

to Rabbi Elazar, who brings proof for Reish Lakish from the beraita, which says that she should neither perform chalitza nor undergo yibbum until she knows whether her rival wife was pregnant:

Does

the beraita

teach, “She may not perform chalitza and she may not perform yibbum,”

so that you can derive from it that the chalitza and intercourse of a pregnant woman are not chalitza and not intercourse?!

It teaches, “She may not marry and she may not perform yibbum,”

in the beraita, and the discussion is

without chalitza,

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

But if he performs chalitza for her,

even within nine months,

it is likewise the case that she is permitted

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

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

The Gemara brings:

It was taught—

in accordance with Reish Lakish:

As it was taught:

If one performed chalitza with a pregnant woman, and she miscarried—

she requires chalitza from the brothers!

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

laws that follow:

One is the matter we stated,

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

The other

is

as we learned:

A person

who distributes

his

property

among his heirs

by his own declaration,

who commanded this and wrote it in a will, as a distribution of his property during his lifetime as a gift from him, by virtue of his spoken words, and not as an ordinary inheritance, in which he did not write, “So-and-so my son shall inherit this amount, and so-and-so my son shall inherit that amount”—

If he

increased

the property

for one, and diminished

the property

for another, and equated the firstborn with them,

so that he would not receive a double portion—

his words stand.

For a person is entitled to distribute his property during his lifetime as he wishes.

And if he said,

writing in the will that this distribution was

because of inheritance,

such as writing in the document, “This field shall be inherited by this son of mine, and another field shall be inherited by my other son,” so that his sons would inherit from him by virtue of inheritance—

he has said nothing.

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

And if he

wrote

language of a gift in the document, 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 writing, “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 it

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 document that he was distributing his property

because of a

gift—

his words stand!