Yevamot 39b (לט:) — the Talmud in English

There are those who say:

there are those who say that

with regard to intercourse—

everyone agrees that the intercourse of a minor is preferable

to the ḥalitza of an adult.

When they disagree—

it is with regard to the ḥalitza of a minor.

And this is how it was stated: With regard to the ḥalitza of a minor and the ḥalitza of an adult—

Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree.

One said: The ḥalitza of an adult is preferable.

And one said: They are equivalent,

they are equal.

And the Gemara explains the basis of their disagreement:

The one who says that the ḥalitza of an adult is preferable—

as the mitzva is performed by an adult,

and this mitzva applies both to yibbum and to ḥalitza, which takes the place of yibbum.

And the other

holds that

when we say that the mitzva is performed by an adult—

that is with regard to yibbum. But with regard to ḥalitza—

they are equivalent!

And the Gemara brings a proof from our Mishna that the ḥalitza of an adult is preferable to the ḥalitza of a minor:

We learned: If they did not wish

the brothers

return to the eldest.

What, is it not that they did not wish

the brothers

to perform yibbum, but rather

they wished only

to perform ḥalitza, and it teaches

in our Mishna:

They return to the eldest!

And learn from this that the ḥalitza of an adult is preferable!

And the Gemara rejects this:

No,

that is not the meaning of the Mishna.

Rather,

if they did not wish

the brothers

either to perform ḥalitza or to perform yibbum.

Then they return to the eldest.

And we challenge this: If this is the explanation of the Mishna, then one must similarly explain

in the same manner,

the statement in the Mishna

with regard to the eldest, “

did not wish,” meaning that he

did not wish either to perform ḥalitza or to perform yibbum!

And if so, since the eldest brother initially refused to perform ḥalitza or yibbum, and the other brothers likewise refused the request of the court,

but why do they return

the court from the brothers

to the eldest?

It must necessarily be in order

to compel him,

to compel him to perform ḥalitza or yibbum.

And since the court is dealing with the brothers’ refusal to perform yibbum or ḥalitza, why should the court trouble itself to return to the eldest in order to compel him?

To compel them themselves,

the brothers who refuse to perform yibbum or ḥalitza, to fulfill the mitzva through yibbum or ḥalitza!?

And we answer:

Since the mitzva is imposed upon him,

upon the eldest,

it rests,

it is incumbent upon him,

we compel him himself

and not the brothers.

And the Gemara brings a proof from our Mishna that the ḥalitza of an adult is not preferable:

Come and hear,

from what we learned:

If the eldest

of the brothers present here

relied upon the eldest

of all the brothers, who is in a distant land,

until he comes from the distant land—

they do not

heed him.

And if it enters your mind that the ḥalitza of an adult is preferable—

why do they not heed him,

to wait for him so that he can fulfill the mitzva of ḥalitza?

Let them wait,

let them wait for him,

perhaps he will come,

perhaps the eldest of all the brothers will come from the distant land,

and perform ḥalitza

for her!?

Rather, from here there is proof that the ḥalitza of the eldest is not preferable to the ḥalitza of the minor!

The Gemara rejects this:

But according to your reasoning,

that you asked why they do not wait for the eldest of the brothers until he returns, and you proved from this that the ḥalitza of the minor is equivalent to the ḥalitza of the adult—

you should likewise challenge your position from our Mishna, where the tanna said: If the eldest relied

upon the minor,

to wait for him

until he becomes an adult

and performs yibbum with her—

they do not heed him.

And

why

do they not heed him?

Let them wait,

let them wait, because

perhaps he will grow up,

perhaps the minor will grow up,

and

he

will perform yibbum

with her. After all, the mitzva of yibbum is preferable!

Rather,

necessarily, they do not wait for him, because

any delay of a mitzva is not a delay.

And if so, the fact that they do not wait for the ḥalitza of the eldest provides no proof that the ḥalitza of the minor is equivalent to the ḥalitza of the eldest.

We learned there

in tractate Bekhorot [13a]:

The mitzva of yibbum takes precedence over the mitzva of ḥalitza.

When does this statement apply?

Initially,

in former times,

when they intended

through yibbum

for the sake of the mitzva.

But

now, when they do not intend

through yibbum

for the sake of the mitzva—

the Sages said

:

The mitzva of ḥalitza takes precedence over the mitzva of yibbum.

Rav said:

Although the Sages said that the mitzva of ḥalitza now takes precedence over the mitzva of yibbum, if the yavam and the yevama wish to fulfill the mitzva of yibbum—

the court does not compel

them to refrain from performing yibbum, due to the concern that perhaps they will not intend it for the sake of the mitzva and will transgress the prohibition of a brother’s wife.

When they came

when a yavam and a yevama would come

before Rav, he would say to them:

If you wish,

if that is your desire,

perform ḥalitza.

If you wish, perform yibbum—

because

the Merciful One entrusted the matter to you,

whether to perform yibbum or ḥalitza!

As it is stated in the passage concerning yibbum [Deuteronomy 25]:

“And if the man does not desire.”

This implies that if he desires—

if he wishes, he performs ḥalitza; if he wishes, he performs yibbum.

And Rav Yehuda likewise held

that

the court does not compel

them to refrain from performing yibbum.

And the proof is:

from the fact that Rav Yehuda instituted the wording of the get of ḥalitza,

the document that the court writes for the woman who undergoes ḥalitza, Rav Yehuda instituted that they should write as follows:

We, so-and-so and so-and-so, the judges, when we sat in session as a court, saw

how so-and-so daughter of so-and-so, brought

she brought [literally: presented]

him

the

so-and-so yavam, before us

before us,

before the court,

and it became known to us,

it was clarified to us

that

the yavam—indeed

he is the paternal brother of the deceased,

he is his brother on his father’s side.

And we said to him,

and we, the court, said to him:

If you desire,

if you wish

to perform yibbum, perform yibbum!

And if not,

if you do not desire yibbum but rather ḥalitza—

extend

your

right foot toward her,

present your right foot, directed toward her.

And

he indeed

extended

presented

to her

the

right foot.

And she loosened his shoe,

and the yevama loosened the straps of the shoe

from his feet,

of the yavam.

And she spat before him

before him

spittle that is visible

that was visible

to

the eyes of

the court, on the ground.

on the ground.

And Rabbi Ḥiyya bar Avya concludes it in the name of Rav Yehuda: “And we read it to them,”

we read before them the passage concerning yibbum,

what is written in the Torah scroll of Moses.

And now the Gemara discusses the phrase

“and it became known to us”

[it was clarified to us] stated in the get of ḥalitza: How did it become known to the court that this yavam was indeed the paternal brother of the deceased?

Rav Aḥa and Ravina disagree about this:

One said:

The court ascertained it

through witnesses,

that two valid witnesses came and testified before them that this man was the paternal brother of the deceased.

And one said: Even a relative, and even a woman,

are valid to establish this relationship, since this is not considered testimony but rather clarification.

And the halakha is: “

it became known to us”—

it is merely the disclosure of a matter.

And

therefore,

even a relative, and even a woman,

are trusted to establish on their basis that he is the paternal brother of the deceased.

Earlier we learned the Mishna in tractate Bekhorot:

Initially, when they intended it for the sake of the mitzva—

the mitzva of yibbum takes precedence over the mitzva of ḥalitza; but now, when they do not intend it for the sake of the mitzva, they said

the Sages:

the mitzva of ḥalitza takes precedence over the mitzva of yibbum.

Rami bar Ḥama said in the name of Rabbi Yitzḥak,

but now

they have returned to saying: The mitzva of yibbum takes precedence over the mitzva of ḥalitza!

Rav Naḥman bar Yitzḥak said to him: Have the generations become worthy!?

Have the later generations become more worthy than the earlier generations?

He said to him:

Initially, they held like Abba Shaul,

as will be explained immediately.

But ultimately, they held like the Rabbis,

who were not so concerned.

As it was taught in a beraita, Abba Shaul says:

A yavam

who consummates his levirate marriage with his yevama for the sake of beauty, or for the sake of marriage, or for the sake of some other matter—

he is

as though he had relations with a forbidden relative.

And it is nearly certain in my view that the child will be a mamzer!

This is because the prohibition of a brother’s wife was permitted only for the purpose of fulfilling the mitzva of yibbum. Since this man intends to marry her for some other purpose, he is like one who has relations with his brother’s wife not for the purpose of fulfilling the mitzva of yibbum. Therefore, it is nearly certain that the child will be a mamzer, as is the law concerning one born from a relationship punishable by karet.

And the Sages say: [Deuteronomy 25]

“

The yevama shall he take”—

in any case!

In light of this, we inquire:

Who is the tanna,

who is the tanna according to whom we learned

this that the Rabbis taught:

“The yevama shall he take”—

it is a mitzva!

Initially,

before his brother betrothed her,

she was included, with regard to him, within the category of permitted women

to marry him.

But when she became betrothed to his brother,

she became forbidden

to him under the prohibition of a brother’s wife [in addition to the prohibition of a married woman].

And

after his brother died without children, she

became permitted again

to him.

Could she return to her original permitted status,

as she had been before her deceased brother-in-law married her?

The verse states: “The yevama shall he take”—

it is a mitzva

and not merely a permission!

The Gemara repeats its question before presenting the beraita:

Who is the tanna,

who is the tanna according to whom this beraita was taught, and what did he intend to say by these words?

Rabbi Yitzḥak bar Avdimi said:

This beraita was taught according to the approach of

Abba Shaul

—it is his position!

And this is what it is saying: “The yevama shall he take”—

for the sake of

the mitzva

of yibbum, as stated later in the verse, “and he shall consummate the levirate marriage with her.”

This implies that the purpose of the intercourse must be exclusively the fulfillment of the mitzva of yibbum, and not merely intercourse permitted by virtue of the levirate relationship.

Initially,

before she married his brother,

she was,

this woman,

included within the category of permitted

marriages.

If he wished—

he married her for the sake of beauty; if he wished—

he married her for the sake of marriage.

Once she married his brother,

she became forbidden

to him.

And when his brother died without children, she

became permitted again

to enter into yibbum with him.

Could she return to her original permitted status,

so that she would be permitted to him both for the sake of marriage and for the sake of beauty?

The verse states: “The yevama shall he take”—

for

the sake of

the mitzva

of yibbum!

The meaning of “for the mitzva” is that it is only for the sake of the mitzva, and not merely for the purpose of taking advantage of the permission. For according to Abba Shaul, intercourse merely for the sake of permission is forbidden on account of the nakedness of a brother’s wife!

Rava said: You may even say

that this beraita follows the approach of

the Rabbis

; it can also be explained if we read “mitzva,” which indicates precedence—that it is a mitzva, ideally, to give yibbum precedence over ḥalitza—and we do not read “for the mitzva,” which would indicate restriction, meaning that it is permitted only for the sake of the mitzva and not merely as permitted intercourse!

And this is what it is saying: “The yevama shall he take”—

it is a mitzva!

The mitzva to perform yibbum with her is more important than the mitzva to perform ḥalitza with her.

Initially,

before his brother’s marriage,

she was included within the category of permitted women. If he wished, he married her; if he wished, he did not marry her ...

Afterward,

she became forbidden

through her marriage to his brother.

She became permitted again,

when the brother died without children.

Could she return to her original permitted status,

and no more,

so that if he wished he could marry her, and if he wished he would not marry her?

[The verse states: “The yevama shall he take”—it is a mitzva]!

The Gemara interrupts the wording of the beraita midway in order to clarify and correct what is stated in it:

Since the tanna did not say, “If he wished, he performs ḥalitza with her,” but rather, “If he wished, he does not marry her,” his words apparently imply that if he wishes, he does not marry her, but she may marry someone else without ḥalitza.

And we wonder: Can one really say,

“If he wished, he does not marry her,”

and she may marry someone else without ḥalitza!?

But the yevama

is bound to him,

she is tied and bound to the yavam through the bond of yibbum! And if so, can she

simply,

for nothing, without any act that releases her,

leave,

and go out to marry someone else?

Therefore, the Gemara emends the wording of the beraita:

Rather, say: She could return to her original permitted status:

she could return to her original permitted status,

if he wished, he would marry her; if he wished, he would perform ḥalitza with her—

The verse states: “The yevama shall he take”—

it is a mitzva

to perform yibbum with her rather than to perform ḥalitza with her!

The Gemara proves from the beginning of the beraita, which was taught in the Torat Kohanim, that it follows Rava and not Rabbi Yitzḥak bar Avdimi:

Let us say that the first clause

of the beraita in the Torat Kohanim states:

It is written [Leviticus 6], with regard to the mitzva of the priests to eat the remainder of the meal-offering after it has been scooped: “

And what is left of it shall be eaten by Aaron and his sons.”

And the verse repeats with an additional expression:

“It shall be eaten as matzot, in a holy place,”

to teach you that the priests’ eating of the remainder of the meal-offering is not merely a permission or a right; rather, it is

a mitzva!