Yevamot 39b — 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—

with regard to the ḥalitza of a minor.

And this is what was stated: The ḥalitza of a minor and the ḥalitza of an adult—

Rabbi Yohanan and Rabbi Yehoshua ben Levi disagreed concerning them.

One said: The ḥalitza of an adult is preferable.

And one said: They are equivalent,

they are equal.

And the Gemara explains the reason for their disagreement:

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

for the mitzva is with an adult,

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

And the other

holds:

when we say that the mitzva is with an adult—

with regard to yibbum. But with regard to ḥalitza—

they are equivalent!

And the Gemara brings 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 adult.

What, is it not the meaning of “if 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 adult!

And learn from it 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

neither to perform ḥalitza nor to perform yibbum.

And then they return to the adult.

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

similarly,

in a similar manner, what is stated in the Mishna

with regard to the adult: “

he did not wish,” meaning that he

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

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

but why do they return

the court from the brothers

to the adult?

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 we trouble the court to return to the adult in order to compel him

to compel them,

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 adult,

it rests,

it is incumbent,

we compel him

and not the brothers.

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

Come and hear,

from what we learned:

The adult

the oldest of the brothers who are here

suspended the matter upon the adult

of all the brothers, who is in a country overseas,

until he comes from the country overseas—

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 may fulfill the mitzva of ḥalitza?

Let them wait,

let them wait for him,

perhaps he will come,

perhaps the oldest of all the brothers will come from the country overseas,

and perform ḥalitza

for her!?

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

The Gemara rejects this:

But according to your reasoning,

for you challenged why they do not wait for the oldest of the brothers until he returns, and proved from here that the ḥalitza of the minor is equivalent to that of the adult.

you should also challenge your own reasoning from our Mishna, where the tanna, a sage of the Mishnaic period, said: If the adult brother designated

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,

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, since

every delay of a mitzva—we do not delay.

And if so, you have no proof from the fact that they do not wait for the ḥalitza of the adult that the ḥalitza of the minor is equal to that of the adult.

We learned there

in tractate Bekhorot [13a]:

The mitzva of yibbum precedes the mitzva of ḥalitza.

In what case are these words said?

At first,

in the past,

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 Sages:

The mitzva of ḥalitza precedes the mitzva of yibbum.

Rav said:

Even though the Sages said that the mitzva of ḥalitza now precedes the mitzva of yibbum, if the levir and the levirate woman wished to fulfill the mitzva of yibbum—

they are not compelled

by the court to refrain from performing yibbum, because of the concern that perhaps they will not intend for the mitzva and will transgress the prohibition of a brother’s wife.

When they came

when a levir and a levirate woman would come

before Rav, he would say to them:

If you wish,

if it is your wish,

perform ḥalitza.

If you wish, perform yibbum—

for

the Merciful One made it dependent upon you,

whether to perform yibbum or ḥalitza!

As it is stated in the passage of 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

they are not compelled

to refrain from yibbum.

And the proof is:

from the fact that Rav Yehuda instituted in the deed of ḥalitza,

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

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

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

brought

her

the

so-and-so, the levir, before us

before us,

before the court,

and it became known to us,

it was clarified to us

that

the levir—indeed

he is the paternal brother of the deceased,

he is the deceased’s brother from his father.

And we said to him,

and we, the court, said to him:

If you desire,

if it is your wish

to perform yibbum, perform yibbum!

And if not,

if you do not desire yibbum but ḥalitza—

extend

your foot to the side

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 levirate woman untied the straps of the shoe

from his feet

of the levir.

And she spat before his face

before him

spittle that was visible

that was seen

to

the eyes of

the court, upon the ground.

upon the ground.

And Rabbi Hiyya bar Avya concludes it in the name of Rav Yehuda: “And we recited it before them”,

we recited before them the passage of yibbum,

what is written in the book of the Torah of Moses.

And now the Gemara discusses

“and it became known to us”

the phrase “it became known to us” stated in the deed of ḥalitza: how did the court know that this levir was indeed the paternal brother of the deceased?

Rav Aḥa and Ravina disagreed concerning it:

One said:

The court clarified this

through witnesses,

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

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

are valid to clarify this relationship, since this is not in the category of testimony but in the category of clarification.

And the halakha: “

it became known to us”—

it is merely disclosure of a matter.

And

therefore,

even a relative and even a woman

are trusted to clarify on their basis that this is the paternal brother of the deceased.

We learned above the Mishna in tractate Bekhorot:

“At first, when they intended for the sake of the mitzva”—

the mitzva of yibbum precedes the mitzva of ḥalitza; and now, when they do not intend for the sake of the mitzva, they said

the Sages:

the mitzva of ḥalitza precedes the mitzva of yibbum.

Rami bar Ḥama said in the name of Rabbi Yitzḥak,

and now

they returned to say: The mitzva of yibbum precedes the mitzva of ḥalitza!

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

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

He said to him:

At first, they held like Abba Shaul,

as will be explained immediately.

But ultimately they held like the Sages,

who are not so concerned.

For it was taught in a beraita: Abba Shaul says:

A levir

who takes his levirate woman in marriage for the sake of beauty, or for the sake of marriage, or for the sake of another matter—

he is

as though he has violated a forbidden sexual relation.

And in my eyes it is nearly certain that the child is a mamzer!

Since the prohibition of a brother’s wife was permitted only for the purpose of fulfilling the mitzva of yibbum, and this man, who intends to take her in marriage for the sake of another matter, is like one who has relations with his brother’s wife not for the purpose of the mitzva of yibbum. Therefore, the child is nearly a mamzer, like one born from those liable for excision.

And the Sages say:

[Deuteronomy 25]

“The levir shall come to her”—

in any case!

And in light of this, we inquire:

Which tanna,

which sage of the Mishnaic period is the one according to whom we learned

this that the Sages taught:

“The levir shall come to her”—

a mitzva!

At first,

before his brother betrothed her,

she was included for him within the category of permission

to marry her.

And when she became betrothed to his brother, she

became prohibited

to him by 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 permission,

as she had been before the marriage to his deceased brother?

The Torah says: “The levir shall come to her”—

a mitzva,

and not mere permission!

And the Gemara repeats its question before bringing the beraita:

Which tanna,

who is the sage according to whom this baraita was taught, and what did he intend to say with these words?

Rabbi Yitzḥak bar Avdimi said:

This beraita was taught according to the approach of

Abba Shaul

and was formulated in accordance with it!

And this is what it says: “The levir shall come to her”—

for the sake of

the mitzva

of yibbum, as stated at the continuation of the verse, “and take her as his wife.”

And it follows that the purpose of the intercourse must be exclusively the fulfillment of the mitzva of yibbum, and not merely intercourse permitted by the law.

At first,

before she married his brother,

she was for him

this woman

within the category of permission

for marriage.

If he wished—

he took her in marriage for the sake of beauty; if he wished—

he took her in marriage for the sake of marriage.

Once she married his brother, she

became prohibited

to him.

And when his brother died without children, she

became permitted again

to undergo yibbum with him.

Could she return to her original permission,

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

The Torah says: “The levir shall come to her”—

for

the sake of

the mitzva

of yibbum!

And the meaning of “for the mitzva” is that only for the sake of the mitzva, and not for the sake of mere permission. For according to Abba Shaul, intercourse for the sake of mere permission is prohibited because of the nakedness of a brother’s wife!

Rava said: You may even say

that this beraita is according to the approach of

the Sages

and it can also be explained if we read “a mitzva,” which is an expression of precedence: it is a mitzva initially to give precedence to yibbum over ḥalitza; and we do not read “for the mitzva,” which is an expression of restriction, meaning that it is permitted only for the mitzva and not for intercourse that is merely permitted!

And this is what it says: “The levir shall come to her”—

a mitzva!

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

At first,

before his brother’s marriage,

she was within the category of permission. If he wished, he took her in marriage; if he wished, he did not take her in marriage ...

Afterward, she

became prohibited

through her brother’s marriage.

She became permitted again,

when the brother died without children.

Could she return to her original permission,

and no more,

so that if he wished he would take her in marriage, and if he wished he would not take her in marriage?

[The Torah says: “The levir shall come to her”—a mitzva]!

And the Gemara interrupts the wording of the beraita in the middle, in order to clarify and correct what is stated in it:

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

And we wonder: Can one really say,

“If he wished, he does not take her in marriage,”

and she may marry outside without ḥalitza!?

But the levirate woman

is indeed bound to him,

she is bound and attached to the levir through the bond of yibbum! And if so, is it that

without cause,

without charge, without any act that will permit her,

she will leave,

she will go out to the outside world?

Therefore, the Gemara corrects the wording of the beraita:

Rather, say: She could return to her original permission:

if he wished, he would take her in marriage;

if he wished, he would perform ḥalitza with her—

The Torah says: “The levir shall come to her”—

a mitzva,

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

And the Gemara proves from the beginning of the beraita, which was taught in the Sifra, in accordance with Rava and not in accordance with Rabbi Yitzḥak bar Avdimi:

Let us say the first part

of the beraita in the Sifra:

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

“And what remains of it Aaron and his sons shall eat.”

And Scripture repeated and said an extra verse:

“As a mitzva it shall be eaten, in a holy place”,

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

a mitzva!