Yevamot 39a (לט.) — the Talmud in English

And Abaye understood that Beit Shammai and Beit Hillel disagree concerning the husband’s status with regard to the right to property that comes into his wife’s possession through inheritance from her father while she is married to him. For if the woman dies before her husband, the property belongs to the husband.

that Beit Shammai and Beit Hillel disagreed about the husband's legal possession of property that comes into his wife's possession as an inheritance from her father while she is married to him. For if the wife dies before her husband, the property belongs to the husband.

And if the husband dies before the woman, this property belongs to the woman.

Meanwhile, as long as they are both alive—

is each of them considered to have equal possession of this property [“his hand is like her hand”]?

Or is the husband’s possession superior to that of the woman, so that he is considered to have greater possession of it than she does?

And Abaye holds that according to Beit Hillel, while she is married,

his hand

the husband’s is only

like her hand

the woman’s, and his possession is not superior to hers with regard to property that came into the woman’s possession from her father’s household.

Therefore, when her husband dies and she falls before the yavam, and while she is a shomeret yavam she is not married to him but is merely bound to him, at that time the yavam’s possession is diminished, and the woman’s possession is superior to that of the yavam.

Consequently, the property is then considered to be in her possession alone.

And if she dies while she is a shomeret yavam, only her father’s heirs inherit her, and not her husband’s heirs.

Whereas Beit Shammai hold that the husband’s possession, while she is married to him, is superior to that of the woman. Therefore, when the husband dies and she becomes a shomeret yavam, the strength of her possession then becomes equal to that of the yavam.

Therefore, if she dies while she is a shomeret yavam, her heirs divide with her husband’s heirs the property that came into her possession while she was in her father’s household.

For the woman’s possession while she is a shomeret yavam is equivalent to the possession of the yavam.

Rava said

to Abaye:

If the property came into her possession

from her father’s household

while she was married to the husband—

everyone agrees that his possession is superior to hers!

And if the husband dies and she becomes a shomeret yavam, her possession then becomes equal to that of the yavam. Therefore, when she dies while she is a shomeret yavam, Beit Hillel agree that they divide the property, since her possession is then equal to that of the yavam.

Rather, both this

the first clause and the latter clause are discussing

property that came into her possession

from her father’s household

while she was a shomeret yavam.

And this is the distinction between the first clause and the latter clause:

The first clause

speaks of a case in which

the yavam did not perform

with her

maamar

before the property came into her possession, and at that time there was only the bond of zikah between them.

And zikah does not constitute a state of marriage that would grant the yavam any right whatsoever to her property.

Therefore, if she dies while she is a shomeret yavam, no share of the property goes to the husband’s heirs.

The latter clause

speaks of a case such as one in which

the yavam did perform

with her

maamar, and afterward the property came into her possession.

And afterward the property came into her possession.

Beit Shammai follow their consistent view that maamar effects acquisition by Torah law, and she is therefore now the yavam’s wife, so that the yavam has a right to the property, as a husband does.

Whereas Beit Hillel hold that maamar does not effect acquisition by Torah law, and the maamar that the yavam performed with his yevama added nothing with regard to his right to the property. Rather, the property remains considered to be in the woman’s possession alone.

And according to Beit Shammai, the yavam acquires only half the property if the shomeret yavam dies, and not all of it—

since

Rava holds that the acquisition effected by

maamar

according to Beit Shammai \—

effects:

a.

certainly

the acquisition of

a betrothed woman.

b.

But it is uncertain whether it effects

the acquisition of

a married woman.

And the Gemara explains his statement:

a.

“Certainly a betrothed woman”—

to reject a rival wife.

As explained above [29a], according to Beit Shammai, if the yavam betrothed the yevama through maamar, and afterward her sister from another brother fell before him for levirate marriage, the sister who fell from the other brother is forbidden to him as the sister of his wife, and there is no zikah between her and him.

Therefore, the woman with whom he performed maamar is not forbidden to him as “the sister of his bound wife.” [The reference here is not to the rival wife of a forbidden relative, but to the sister of the woman with whom maamar was performed, who is called the “rival” in this terminology.]

b.

And “an uncertainly married woman”—

to divide the property.

For with regard to the yavam’s possession of the property, the acquisition effected by maamar is insufficient, even though it effects acquisition by Torah law. This is because maamar effects only betrothal, and in the case of a betrothed woman the husband has no possession whatsoever of her property.

Rather, maamar is considered as though she were an “uncertainly married woman” to him, so that he would acquire half of her property if she were to die while she was still a shomeret yavam.

It was stated in the name of Rabbi Elazar—

in accordance with Rava.

And

on the other hand,

it was stated in the name of Rabbi Yosei bar Rabbi Ḥanina—

in accordance with Abaye.

And we challenge this:

Did Rabbi Elazar really say this,

in accordance with Rava, that maamar effects acquisition according to Beit Shammai, making her an “uncertainly married woman”?

But Rabbi Elazar said: According to Beit Shammai, maamar effects acquisition only to reject a rival wife,

by virtue of the fact that maamar is considered an acquisition of betrothal by Torah law.

And the Gemara assumed that his intention was to say that maamar does not render the yevama married to the yavam!

And we answer:

Reverse the attributions!

The statement was made in the name of Rabbi Elazar in accordance with Abaye, who did not interpret our Mishna as referring to maamar.

And the statement was made in the name of Rabbi Yosei bar Rabbi Ḥanina in accordance with Rava.

And if you wish, say: Actually, do not reverse the attributions.

For

Rabbi Elazar could say: When I said

that maamar effects acquisition with a yevama only to reject a rival wife, my intention was

that it is not sufficient for her

to leave after he performed maamar with her

with a get

alone.

For maamar is not considered levirate marriage,

rather, she also requires halitza

in order to be permitted to marry outside the levirate bond, together with the get.

But

with regard to dividing the property, that it does not acquire—

that is, that the yavam would not acquire through the maamar the right to divide the property—

who said that?!

Did I say that? Certainly I do not hold this way. Rather, the yavam has a right to the property by virtue of the maamar.

Rav Pappa said

two points: a.

The inference from the language of the Mishna—

the precise wording of the Mishna is

in accordance with him,

like the explanation

of Abaye,

who interpreted the latter clause as referring to property that came into her possession while she was still married to her husband, and afterward her husband died and she became a shomeret yavam.

Beit Shammai and Beit Hillel disagree whether, while she was married to her husband, his possession was equal to hers or his possession was superior to hers.

According to Beit Shammai, the husband’s possession is superior to hers. Therefore, when the husband dies and she falls before the yavam, whose possession is weaker than the husband’s, the yavam’s possession becomes equal to hers, and they divide the property.

b.

And although there is a difficulty

with his explanation: Why did the Mishna formulate the latter clause as referring to her

death

as a shomeret yavam?

And Rav Pappa explains his statement:

a. What I said, that the wording of the Mishna is precise in accordance with Abaye—

is derived from this:

For it teaches: “Property that enters and leaves with her.”

What

does it mean that the property

“enters”?

And what

does it mean that it

“leaves”?

Is it not that it “enters”

first

into the husband’s domain,

when it came to the woman while she was married to her husband, at which time her husband had a right to it?

And it “leaves” the husband’s domain for the father’s domain

when the husband dies and she becomes a shomeret yavam.

b. And what I said:

“And although there is a difficulty from the wording ‘she dies’”—

this is the difficulty according to Abaye:

Rather than their dividing—

rather than Beit Shammai and Beit Hillel dividing

the body

of the land

after the death

of the shomeret yavam, concerning whether the husband’s heirs have a right to it—

let them divide

while she is alive,

during her lifetime

of the yevama,

and with regard to the produce—

whether the yavam is entitled to consume the produce of the property.

According to Beit Shammai, the yavam’s possession is equal to that of the shomeret yavam, and the yavam and the yevama divide the produce.

Whereas according to Beit Hillel, her possession is superior to his, and he has no share in the produce!

And the two points that I stated are entirely correct,

and that is all.

And it is impossible to refute or reject them in any way!

We learned in the Mishna:

“If he took her”—

“she is”

like his wife in every respect.

And we raise a question concerning this:

For what halakhic purpose,

what practical halakhic novelty is there in what the tanna said: “She is his wife in every respect”?

Rabbi Yosei bar Ḥanina said:

The tanna

intended to say

by this that there are two practical halakhic novelties.

a.

That he may divorce her—

the yavam may divorce his wife

with a get,

without halitza.

b.

And that he may take her back,

the yevama whom he divorced.

He may again take her as his wife by betrothing her anew.

And the Gemara asks what novelty there is in these two halakhot:

a. That he may

divorce her with a get—

it is obvious

that this is so!

For the mitzva of levirate marriage was already fulfilled when he took her, and from then on she can leave only through a get and not through halitza, since there is no longer a mitzva of halitza after the mitzva was fulfilled through intercourse.

And we answer:

It might have entered your mind

that she would nevertheless require halitza in addition to a get—not for the fulfillment of a mitzva, but so that she could be permitted to marry another man.

For

since it is written

“The yevama shall come to him,”

“and he shall take her as his wife,”

and nevertheless

the Merciful One said, “and he shall perform levirate marriage with her.”

The wording of the verse implies that even after he has taken her as his wife, she continues to be called a “yevama,”

and “the first levirate bond” still rests upon her,

with regard to the fact that only

with

the addition of

halitza

to a get

does

she leave, whereas

with a get

alone she

does not

leave.

Therefore,

the tanna teaches us

that she can leave with a get alone.

b. That the tanna said: It teaches that

he may take her back

after the yavam divorces her—

it is obvious!

For we have learned that she leaves through a get like any other woman, so why should he not be able to take her back, like any woman whom he divorced?

And we answer:

It might have entered your mind

that since the

mitzva

of “and he shall take her as his wife”

that was imposed

that He imposed

upon him

has already been

performed,

he has fulfilled his mitzva.

And if so,

now, should she stand prohibited to him as the wife of his brother!

For one might say that the Torah permitted the prohibition of the wife of one’s brother with regard to the yavam only for the purpose of fulfilling the mitzva of taking her as a wife.

But once he has completed this mitzva by divorcing her, it should be forbidden for him to take her back. For the new marriage that he now wishes to establish would not fulfill the mitzva of levirate marriage, and it would be forbidden for him to take her because she is the wife of his brother. She was permitted only for the purpose of fulfilling the mitzva of levirate marriage.

Therefore,

the tanna teaches us

that he may take her back after divorcing her.

And we raise a question concerning these two novel teachings of the tanna:

But say that this is indeed so:

a. He should not be able to divorce her with a get alone, since the verse says of her, “and he shall perform levirate marriage with her.”

b. He should not be able to take her back after he has already divorced her, since there is no mitzva of levirate marriage here, and she is the wife of his brother!

And we answer: If it were the case that even after she had been married she still required halitza, and that if the yavam divorced her he could not take her back, the verse should have written only: “The yevama shall come to him, and he shall perform levirate marriage with her.” It would then have been appropriate to say that the first levirate bond still rests upon her.

But since it added and

the verse said, “and he shall take her—

as his wife!”

The verse teaches, by adding the words “and he shall take her as his wife”:

Once he has taken her

as his wife—

she is like his wife in every respect.

Therefore, he may divorce her with a get alone, and he may even take her back after divorcing her.

And the fact that the verse says “and he shall perform levirate marriage with her” teaches that the yavam may perform levirate marriage with her against her will, according to the Rabbis; whereas according to Rabbi, it comes to prohibit the rival wives of a forbidden relative [above, 8a; Rashi].

We learned in the Mishna:

“Provided that her marriage contract is”

secured by the property of her first husband:

That is, the yavam is not liable for the marriage contract of his yevama, and the yavam may sell all his property whenever he wishes, without leaving any property encumbered to secure her marriage contract.

This applies unless he possesses property of the deceased husband, which is indeed encumbered for the collection of her marriage contract from the first husband.

And we raise a question:

What is the reason

that the yavam is not liable for her marriage contract, and that the yavam’s property is likewise not encumbered to secure her marriage contract from him?

And we answer: The yavam is not liable for his yevama’s marriage contract, since

“a wife has been assigned to him”

for levirate marriage

from Heaven.

And he did not encumber his property for her marriage contract. Therefore, he may sell all his property whenever he wishes, without leaving her anything from which to collect her marriage contract.

But

if she has no

possibility of collecting her marriage contract

from

the

first

husband, because he left no property behind—

the Rabbis instituted for her

a marriage contract

from the second,

from the yavam,

so that she would not be insignificant in his eyes

the yavam’s

to divorce her.

Mishna:

The mitzva is incumbent first upon the eldest

of the brothers

to perform levirate marriage, as it is written: “And it shall be that the firstborn,” teaching that it is a mitzva for the firstborn of the brothers, or the eldest of the brothers, to perform levirate marriage first.

If the eldest of the brothers does not wish to perform levirate marriage—

If the eldest does not wish

to perform levirate marriage,

the court goes

to all the brothers

and

asks them to perform levirate marriage with her.

If they do not wish

all the brothers to perform levirate marriage,

the court returns

to

the eldest

of the brothers, to compel him.

And they say to him: “Upon you

rests the

mitzva: Either remove her shoe or perform levirate marriage!”

And if

the eldest makes

the performance of levirate marriage dependent

on

his

younger

brother, who is younger than thirteen years old—that is, he asks to wait

until he becomes an adult,

so that the younger brother will perform levirate marriage with her when he comes of age, since a minor cannot perform levirate marriage—

or

the eldest of the brothers who are present makes the performance of levirate marriage dependent

on the eldest

of the brothers who is not present, saying: Wait

until

the eldest of all the brothers

comes

from

overseas,

and he will perform levirate marriage with her—

or

he makes the performance of levirate marriage dependent on a brother who is

deaf-mute or mentally incompetent—

they do not heed him

the eldest of the brothers who are present.

Rather, they say to him:

Since at present you are the eldest of the brothers who are present, the mitzva of levirate marriage must not be delayed until the eldest brother comes from overseas. Rather,

upon you

rests the

mitzva: Either remove her shoe or perform levirate marriage!

Gemara:

It was stated: If the choice before us is between

the

the intercourse of

a

younger

brother with the yevama [and the meaning of “younger” here is not that he is actually a minor, but that he is not the eldest of the brothers; he is nevertheless over thirteen years old].

And

between

the halitza of the eldest,

where the eldest of the brothers is prepared to perform halitza but not levirate marriage—which is preferable, the halitza of the eldest brother or the intercourse of the younger brother?

Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree about this.

One says: The intercourse of the younger brother is preferable,

and the other says: The halitza of the eldest is preferable.

And the Gemara explains their disagreement:

The one who says that the intercourse of the younger brother is preferable holds so because the mitzva is levirate marriage,

whereas halitza applies only if he does not wish to perform levirate marriage.

And the one who says that the halitza of the eldest is preferable holds so because

when

the eldest

is present, the intercourse of the younger brother is nothing!

For the mitzva is incumbent upon the eldest.

And the Gemara brings proof that intercourse is preferable, from our Mishna:

We learned: “If the eldest did not wish

to perform levirate marriage—

the court goes around to all the brothers.”

What, is it not that “the eldest did not wish”

the eldest

to perform levirate marriage, but

wished only

to perform halitza?

And

nevertheless

it teaches: “The court goes to the brothers”,

to ask them to perform levirate marriage!

Conclude from this: The intercourse of the younger brother is preferable!

And the Gemara rejects the proof:

No,

this is not what the Mishna intends to say. Rather:

If the eldest did not wish

the eldest—not

to perform halitza and not to perform levirate marriage,

then they go around to all the brothers.

And the Gemara challenges this: If this is the meaning of “the eldest did not wish”—that he did not wish either to perform halitza or to perform levirate marriage—then likewise

correspondingly,

the statement in the Mishna

concerning the brothers, “If the brothers did not wish, the court returns to the eldest,” should be explained as meaning—

that

he is:

“The brothers did not wish

the brothers

either to perform halitza or to perform levirate marriage!”

And if so, if none of them wishes either to perform halitza or to perform levirate marriage, there is a difficulty:

Why does the court return

from the brothers

to the eldest?

It must necessarily be in order

to compel him,

to compel him to perform levirate marriage or halitza!

It would be understandable if the explanation were that the eldest did not wish to perform levirate marriage but wished to perform halitza, and likewise the brothers did not wish to perform levirate marriage but wished to perform halitza. In that case, it is proper for the court to return to the eldest brother so that he will perform halitza, since he takes precedence over all the brothers with regard to halitza [when none of the brothers wishes to perform levirate marriage].

But now that we have established that the eldest brother does not wish either to perform halitza or to perform levirate marriage, and that all the brothers likewise do not wish either to perform halitza or to perform levirate marriage, the question before us is: Whom must they compel to fulfill the mitzva?

For when the eldest brother refused levirate marriage and halitza, there was still no basis for compelling him to do so, before they first went to the other brothers, because it was possible that one of the brothers would agree to fulfill the mitzva.

Only after the court finished determining with the other brothers that they were not prepared to fulfill the mitzva and did not wish either to perform halitza or to perform levirate marriage did it return to the eldest, to compel him to fulfill the mitzva.

If so, there is a difficulty: Why do we trouble the court to return again to the eldest brother in order to compel him?

For once the court has finished determining with the other brothers that they are not prepared either to perform halitza or to perform levirate marriage, the rule of precedence no longer applies to the eldest.

And since the brothers refuse to fulfill the mitzva at all, and they are now before the court—

they should be compelled,

the brothers, to fulfill the mitzva, either to perform halitza or to perform levirate marriage!

And we answer:

Since the mitzva rests upon him,

the eldest brother,

and is imposed upon him,

and all of them refuse to fulfill it, therefore only

him do we compel,

and not the other brothers.

And now the Gemara brings proof from our Mishna that the halitza of the eldest should be preferred to intercourse with the younger brother:

We learned: “If he made it dependent on the younger brother until he becomes an adult”—

“They do not heed him!”

And the Gemara infers:

And if the intercourse of the younger brother is preferable, why do they not heed him,

to wait until the younger brother comes of age? After all, according to your statement, they should wait, since the intercourse of the younger brother is preferable.

Let us wait,

let us wait and see

perhaps he will become an adult

the younger brother

and perform levirate marriage

with her!?

And the Gemara rejects the proof:

But according to your reasoning,

since you said that the halitza of the eldest is preferable, the statement of the Mishna

“And

if the eldest of the brothers who are here made the fulfillment of the mitzva dependent on waiting for

the eldest

of the brothers who is in the land overseas, and waiting for him

until

he comes from overseas—

they do not heed him.”

Why

do we not heed him?

Why not

wait

and preserve the option while awaiting him,

perhaps he will come and perform halitza,

for according to your statement, halitza is preferable!

Rather,

we must necessarily say:

any delay of a mitzva—

we do not delay!

If so, even if the intercourse of a minor is preferable, one cannot challenge this by saying that we should wait for the minor until he grows up and has intercourse, since we do not delay a mitzva.