Yevamot 39a — the Talmud in English

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

And meanwhile, as long as both of them are alive—

are they considered to possess these properties equally [“his hand is like her hand”]?

Or is the husband’s hand superior to the woman’s hand, and does he possess them more than she does?

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

his hand

of the husband is only

like her hand

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

And therefore, when her husband dies and she falls before the yavam, and while she is a yevama awaiting levirate marriage she is not married to him but is merely bound to him, at that time the hand of the yavam is weakened, and the woman’s hand is superior to the hand of the yavam.

And therefore, the property at that time is in her possession alone.

And if she dies while she is a yevama awaiting levirate marriage, only her father’s heirs inherit her, and not her husband’s heirs.

Whereas Beit Shammai hold that the husband’s hand, when she is under his authority, is superior to the woman’s hand. And therefore, when the husband dies and she becomes a yevama awaiting levirate marriage, the power of her hand then becomes equal to the hand of the yavam.

And therefore, if she dies while she is a yevama awaiting levirate marriage, her heirs divide with the husband’s heirs the property that came to her while she was in her father’s household.

For the woman’s possession while she is a yevama awaiting levirate marriage is like the possession of the yavam.

Rava said to Abaye

:

If the property came to her

from her father’s household

while she was under the authority of the husband—

everyone agrees that his hand is superior to hers!

And if the husband dies and she becomes a yevama awaiting levirate marriage, her hand then becomes like the hand of the yavam. Therefore, when she dies while she is a yevama awaiting levirate marriage, Beit Hillel agree that they divide the property, since her hand is then equal to the hand of the yavam.

Rather, both this and that,

both the first clause and the latter clause, concern

property that came to her

from her father’s household

while she was a yevama awaiting levirate marriage.

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

The first clause

speaks of a case where

he did not perform

the yavam

a maamar

before the property came to her, and at that time there existed only the bond toward him.

And in a bond there is no status of marriage that would give the yavam any right whatsoever to her property.

And therefore, if she dies while she is a yevama awaiting levirate marriage, no share reaches the husband’s heirs.

The latter clause

speaks of a case such as one where

he did perform

the yavam

a maamar,

and afterward the property came to her.

And Beit Shammai follow their position that a maamar effects acquisition by Torah law, and she is now the wife of the yavam, so that the yavam has a right to the property, as does a husband.

Whereas Beit Hillel hold that a 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, it remains possessed by the woman alone.

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

since

Rava understood: the acquisition of

a

maamar, according to Beit Shammai— \-

effects:

1.

Certainly,

the acquisition of

a betrothed woman.

2.

And uncertainly,

the acquisition of

a married woman.

And the Gemara explains his words:

1.

“Certainly a betrothed woman”—

to reject a rival wife.

As explained above [29a], according to Beit Shammai, if the yavam betrothed the yevama through a maamar, and afterward her sister fell before him from another brother, the sister who falls from the other brother is forbidden to him as the forbidden relationship of a wife’s sister, and she has no bond whatsoever to him.

And therefore, his wife with whom he performed a maamar is not forbidden to him by the law of “the sister of one bound to him.” [And the intention here is not a rival wife of a forbidden relation, but the sister of the woman with whom the maamar was performed, who is called the sister in the language of “rival wife.”]

2.

And “uncertainly a married woman”—

to divide the property.

For with regard to the yavam’s possession of the property, the acquisition of the maamar is insufficient, even though it acquires by Torah law. Since the maamar is only an acquisition of betrothal, and in the case of a betrothed woman the husband has no hand at all in her property.

Rather, the maamar is considered as though she were “uncertainly married” to him, so that he would acquire half of her property if she dies while she is a yevama awaiting levirate marriage.

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 Hanina—

in accordance with Abaye.

And we refute this:

But did Rabbi Elazar say this,

in accordance with Rava, that a maamar acquires, according to Beit Shammai, to make her “uncertainly married”?

But Rabbi Elazar said: A maamar, according to Beit Shammai, acquires only to reject a rival wife,

by virtue of the maamar being considered an acquisition of betrothal by Torah law.

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

And we answer:

Reverse it!

What was stated in the name of Rabbi Elazar was in accordance with Abaye, who did not establish our Mishna as referring to a maamar.

And what was stated in the name of Rabbi Yosei bar Rabbi Hanina was in accordance with Rava.

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

For

Rabbi Elazar could say to you: When I said

that a maamar acquires in the case of a yevama only to reject a rival wife, my intention was to say

that it is not sufficient for her

to leave after he performed a maamar with her

with a bill of divorce

alone.

For the maamar is not considered levirate marriage,

but she also requires halitza

in order to be permitted to the market, together with the bill of divorce.

But

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

meaning that the yavam should not acquire through the maamar a right to divide the property—

who said this!?

Did I say this? Certainly I do not hold so. Rather, the yavam has a right to the property on account of the maamar.

Rav Pappa said

two things: 1.

The precision of the Mishna—

the precise wording of the Mishna is

in accordance with him,

like the explanation

of Abaye,

who established the latter clause as referring to property that came to her while she was under her husband’s authority, and afterward her husband died and she became a yevama awaiting levirate marriage.

And Beit Shammai and Beit Hillel disagreed whether, while she was under her husband’s authority, his hand was like hers or whether his hand was superior to hers.

And according to Beit Shammai, the husband’s hand was superior to hers. Therefore, when the husband died and she fell before a yavam, whose hand is weaker than the husband’s hand, the hand of the yavam became equal to hers, and they divide the property.

2.

And although it is difficult

for him, why did the Mishna establish the latter clause with regard to her

dying

as a yevama awaiting levirate marriage?

And Rav Pappa explains his words:

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

is from this:

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

What

does it mean, how does the property

“enter”?

And what

does it mean, how does it

“leave”?

Is it not “enter”

first

into the husband’s domain,

when it came to the woman while she was under her husband’s authority, so that her husband then had a right to it?

And “leave” from the husband’s domain to the father’s domain,

when the husband dies and she is a yevama awaiting levirate marriage.

B. And what I said:

“And although ‘she died’ is difficult”—

this is the difficulty for Abaye:

rather than their dividing,

until Beit Shammai and Beit Hillel disagree

with regard to the body

of the land

and after the death

of the yevama awaiting levirate marriage, whether the husband’s heirs have a right—

let them divide

among themselves

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 hand of the yavam is like the hand of the yevama awaiting levirate marriage, and the yavam and the yevama divide the produce.

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

And the two things that I said are entirely correct,

and there is nothing more.

And it is impossible to answer them or reject them at all!

We learned in the Mishna:

“If he took her”—

“she is”

like his wife in every respect.

And we inquire concerning it:

For what halakhic purpose,

what halakhic innovation is there in what the tan­ na said: she is his wife in every respect?

Rabbi Yosei bar Hanina said:

the tan­ na wished

to say

two halakhic innovations in practice by this.

1.

That he divorces her

the yavam divorces his wife

with a bill of divorce,

without halitza.

2.

And takes her back

the yevama whom he divorced.

For he can return and take her as his wife, by betrothing her again.

And the Gemara asks what innovation there is in these two laws:

A. The fact that he

divorces her with a bill of divorce—

it is obvious

!

For the mitzva of levirate marriage was already fulfilled when he took her, and from now on she can leave only through a bill of divorce 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 enter your mind to say

that nevertheless she would require halitza in addition to the bill of divorce, not for the purpose of fulfilling a mitzva, but so that she could be permitted to marry another man.

For

since it is written [Deuteronomy 25], “The yevama shall come to him,

and he shall take her to himself

as a wife,”

and nevertheless—

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

And it is implied from the wording of the verse that even after he has taken her as a wife, she continues to be called “his yevama,”

and “her first levirate bond” is still upon her,

with regard to the fact that only

with

the addition of

halitza

to the bill of divorce does she leave;

without

it, she leaves, but

with a bill of divorce

alone she

does not

leave.

Therefore,

this teaches us

the tan­ na that she can leave with a bill of divorce alone.

B. The fact that the tan­ na said: It teaches that he

takes her back

the yavam takes her back after he divorced her—

it is obvious!

For we learned that she leaves through a bill of divorce like any woman, so why should he not be able to take her back, like any woman whom he divorced!?

And we answer:

It might enter your mind to say,

since the

mitzva

of “and he shall take her to himself as a wife”

that was imposed

that he fulfill

by the Merciful One upon him,

he already

performed,

he fulfilled his mitzva.

And if so,

now, should she stand under the prohibition of a brother’s wife!

For it could be said that only for the purpose of fulfilling the mitzva of taking her as a wife did the Torah permit the prohibition of a brother’s wife with regard to the yavam.

But once he completed this mitzva by divorcing her, it would be forbidden for him to return and take her. For the new marriage that he now wishes to create would not contain fulfillment of the mitzva of levirate marriage, and it would be forbidden for him to take her because she is the forbidden relation of a brother’s wife. And it was permitted only for the purpose of fulfilling the mitzva of levirate marriage.

Therefore

this teaches us

the tan­ na that he can take her back after he divorced her.

And we inquire concerning the two innovations of the tan­ na:

But say this as well:

A. That he should not be able to divorce her with a bill of divorce alone, since “and he shall perform levirate marriage with her” applies to her.

B. That he should not be able to return and take her after he has already divorced her, since there is no mitzva of levirate marriage here, and she is a brother’s wife!

And we answer: If it were said that even if he married her she would still require halitza, and that if the yavam divorced her she would be forbidden to return to him, it should have written only: “The yevama shall come to him, and he shall perform levirate marriage with her.” Then it would have been appropriate to say that the first levirate bonds still remain upon her.

But since it added and

the verse said, “And he shall take her to himself—

as a wife!”

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

once he has taken her

as a wife—

she is like his wife in every respect.

And therefore he can divorce her with a bill of divorce alone, and he can also take her back after he has divorced her.

And what the verse said, “and he shall perform levirate marriage with her,” comes to teach that he can perform levirate marriage with her against her will, according to the Rabbis, whereas according to Rabbi it comes to prohibit rival wives of a forbidden relation [above 8a; Rashi].

We learned in the Mishna:

“Provided that her marriage contract is”

on the property of her first husband:

That is, the yavam is not liable for the marriage contract of his yevama, and the yavam is permitted to sell all his property whenever he wishes, without leaving property that would be liened for her marriage contract.

Except if he had property of the deceased husband, which is indeed liened for collecting her marriage contract from the first husband.

And we inquire concerning it:

What is the reason

that the yavam is not liable for her marriage contract, and that the yavam’s property is not also liened for her marriage contract from him?

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

a woman was assigned to him

for levirate marriage

from Heaven.

And he did not lien his property for her marriage contract, and therefore he can sell all his property whenever he wishes, without leaving her a place from which to collect a marriage contract.

But

if she has no

possibility of collecting her marriage contract

from

the

first

husband, because he left no property after him—

the Sages instituted for her

a marriage contract

from the second,

from the yavam,

so that she would not be insignificant in his eyes

of the yavam

to divorce her.

Mishna:

The mitzva is with 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 that the firstborn of the brothers, or the eldest of the brothers, perform levirate marriage first.

If the eldest did not wish

the eldest of the brothers did not wish to perform levirate marriage—

the court goes

to

all the brothers,

and asks them to perform levirate marriage with her.

If they did not wish

all the brothers did not wish 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 the shoe or perform levirate marriage!”

And if

the eldest deferred

the levirate marriage

to

his

younger

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

until he grows up,

the younger brother, so that he would perform levirate marriage with her once he grew up, since a minor cannot perform levirate marriage.

Or

the eldest of the brothers present here deferred the levirate marriage

to the eldest

of the brothers who is not present here, and said: Wait

until

the eldest of all the brothers

comes

and

returns from overseas,

and he will perform levirate marriage with her.

Or

he deferred the levirate marriage to a brother who is

deaf-mute or an imbecile—

they do not heed him

the eldest of the brothers present here.

Rather, they say to him:

Since at present you are the eldest of the brothers present here, the mitzva of levirate marriage should not be delayed until the eldest brother comes from overseas, but

upon you

rests the

mitzva: either remove the 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, although his age is above thirteen years]

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 Yohanan and Rabbi Yehoshua ben Levi disagree about it.

One said: The intercourse of the younger is preferable,

and one said: The halitza of the eldest is preferable.

And the Gemara explains their disagreement:

The one who says that the intercourse of the younger is preferable, for the mitzva is in levirate marriage,

and halitza is only if he did not wish to perform levirate marriage.

And the one who says that the halitza of the eldest is preferable,

because

in the presence of the eldest—

the intercourse of the younger is nothing!

For the mitzva is with the eldest.

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

We learned: “If he did not wish

the eldest did not wish to perform levirate marriage—

they return to all the brothers.”

Is it not that “he did not wish”

the eldest

to perform levirate marriage, but

he wished only

to perform halitza?

And

nevertheless

it teaches: “They go to the brothers”

to ask them to perform levirate marriage themselves!

Conclude from it: The intercourse of the younger is preferable!

And the Gemara rejects the proof:

No,

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

“If he did not wish”

the eldest, not

to perform halitza and not to perform levirate marriage,

then they return to all the brothers.

And the Gemara asks: 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

similarly,

in a similar manner, what is stated in the Mishna

with regard to the brothers, “If the brothers did not wish, they return to the eldest”—

means:

They

did not wish

the brothers

either to perform halitza or to perform levirate marriage!

And if so, if all of them do not wish either to perform halitza or to perform levirate marriage, it is difficult:

Why do they return

the court from the brothers

to the eldest?

For it must necessarily be in order

to compel him,

to compel him to perform levirate marriage or halitza!

This works well if the explanation was 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: properly, they return to the eldest brother so that he will perform halitza, since he precedes all the brothers for halitza [in a case where none of the brothers wishes to perform levirate marriage].

But now, since we established the Mishna as referring to a case where the eldest brother does not wish either to perform halitza or to perform levirate marriage, and 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 had to go through the other brothers, because it was possible that one of the brothers would agree to fulfill the mitzva.

And only when the court finished investigating the other brothers, and they were not prepared to fulfill the mitzva and did not wish either to perform halitza or to perform levirate marriage, did they return to the eldest, to compel him to fulfill the mitzva.

And if so, it is difficult: why do we trouble the court to return again to the eldest brother in order to compel him?

For when the court finishes investigating the other brothers, and they are not prepared either to perform halitza or to perform levirate marriage, there is no longer a rule of precedence for the eldest.

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

let us compel them,

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

And we answer:

Since the mitzva rests upon him,

the eldest brother,

and is imposed,

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 is preferable to intercourse with the younger:

We learned: “If he deferred it to the younger until he grows up”—

“they do not heed him!”

And the Gemara infers:

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

to wait until the younger grows up? Yet according to your statement, they should wait, since the intercourse of the younger is preferable;

let us wait,

let us wait and see,

perhaps he will grow up

the younger

and perform levirate marriage

with her!?

And the Gemara rejects the proof:

And according to your reasoning,

that you said that the halitza of the eldest is preferable, regarding what the Mishna said,

“And

if the eldest of the brothers here deferred, to wait to fulfill the mitzva

with the eldest

of the brothers who is in overseas, and to wait for him

until

he comes from overseas—

they do not heed him.”

Why

do we not heed him?

Why not

wait,

let us guard and await him,

perhaps he will come and perform halitza!

For according to your words, halitza is preferable!

Rather,

necessarily, we must say:

any delay of a mitzva—

we do not delay!

If so, even if the intercourse of a minor is preferable, it is not difficult that we should wait for the minor until he grows up and has intercourse, since any delay of a mitzva, we do not delay.