Yevamot 54a (נד.) — the Talmud in English

A sleeping man does not acquire his yevama

, since while asleep he lacks awareness, and an acquisition performed by one without awareness is not an acquisition.

Rather

perhaps you will say that it should be explained

as a case of accidental penetration

, where he became erect for his wife or through erotic thought, fell from the roof, and accidentally penetrated his yevama.

This too cannot be said, because even in this manner he would not acquire his yevama. For:

But Rabba said:

One who

fell from the roof and accidentally penetrated

a woman

[this is the version of the Gemara in Bava Kamma 27a]:

he is

liable

[for injuring her when he fell through a circumstance that could reasonably have been anticipated, which makes him nearly culpable, Rashi, Bava Kamma there]

for four matters

out of the five types of payment for which one who injures another is liable.

But with regard to the fifth matter, payment for humiliation, he is not liable, as the Gemara explains below.

And

if, in this fall, he accidentally penetrated

his yevama—he

does not acquire her

, since he did not intend to engage in intercourse.

Rather,

the meaning of “under duress” in our Mishna must necessarily be as follows:

for example, he intended to have intercourse with his wife

, and became erect for her,

but his yevama overpowered him and he had intercourse with her

, having forced him onto her. [This was explained on the basis of Tosafot].

The Gemara now explains what Rabbi Hiyya taught: “even if

both were under duress,”

in the

beraita of the school of Rabbi Hiyya

above—

What are the circumstances?

For it cannot be explained as a case in which his yevama overpowered him and had intercourse with him, since this beraita deals with a case in which both of them were under duress!

For example, he intended to

have intercourse with

his wife

, and became erect for her,

but gentiles overpowered him and pressed

him and his yevama

against each other, and he had intercourse with her.

The Gemara now returns to explain the fundamental law of our Mishna: One who has intercourse with his yevama, whether unintentionally, intentionally, under duress, or willingly, acquires her:

From where are these matters derived

that the yavam acquires his yevama in every circumstance, even unintentionally and under duress?

As the Sages taught:

It is written in the passage concerning yibbum: “Her yavam shall come to her, take her as his wife, and perform yibbum with her. But if the man does not desire to take his yevama, then his yevama shall go up to the gate, to the elders, and say: My yavam refuses to establish a name for his brother in Israel; he does not desire yibbum with me. Then his yevama shall approach him before the eyes of the elders and remove his shoe from upon his foot.”

And we expound:

“Her yavam shall come to her

, take her as his wife, and perform yibbum with her,” the verse teaches that there is a

mitzva

initially to have intercourse with her and take her as a wife, rather than release her through halitza.

Alternatively: “Her yavam shall come to her”

, and the Torah did not say, “Her yavam shall take her as his wife.” This implies that his intercourse with her itself constitutes his act of marital acquisition, and it makes no difference what his intention or desire was in this act of intercourse.

The verse teaches that

whether

he had intercourse with her

unintentionally, whether

he had intercourse with her

intentionally, whether under duress or willingly

, his yevama is acquired by means of his intercourse with her.

We challenge this:

But you have already derived it

, for you have already used this verse to derive

that

there is a

mitzva

in yibbum rather than in halitza. How can you derive two laws from a single verse?!

And we answer:

With regard

to the

mitzva

of yibbum rather than halitza, there is no need to derive it from the verse “Her yavam shall come to her.” This matter

is

derived

from the verse: “But if the man does not desire

to take his yevama, then his yevama shall go up to the gate, and he shall remove his shoe”

!

For this implies that only if he does not desire yibbum does he perform halitza;

but

if he

desires

, it is more of a mitzva for him to

perform yibbum

and not halitza.

And

since we have learned from that verse that there is a mitzva in yibbum rather than halitza, therefore,

when the verse comes

“Her yavam shall come to her,” it teaches that

whether

he had intercourse with her

unintentionally, whether intentionally, whether under duress or willingly

, he acquires his yevama.

Another beraita was taught:

The Torah says in the passage concerning yibbum: “Her yavam shall come to her, take her as his wife, and perform yibbum with her”:

The Gemara derives several teachings from this verse:

a.

“Her yavam shall come to her.”

Had the Torah stated only “Her yavam shall come to her,” I would say that he acquires her only through intercourse

in the usual manner

. Therefore, the Torah added the phrase

“and take her”

, to teach that even if he had intercourse with her

in an unconventional manner

, he acquires her.

“And perform yibbum with her

”—that is, intercourse.

The verse repeated the law of intercourse here in order to teach that intercourse is indispensable for her [Rashi, Kiddushin 14a]:

Intercourse

alone

completes the acquisition of her

as a fully married woman,

and neither money nor a document completes her acquisition.

“And perform yibbum with her

”—therefore the Torah wrote “and perform yibbum with her,” rather than “and he performs yibbum,” [Tosafot above, 8b] to teach that the yavam acquires his yevama even

against her will.

The Master said

[the Bach]:

“Alternatively: ‘Her yavam shall come to her,’ whether unintentionally

whether intentionally, whether under duress or willingly.

We challenge this:

But you have already derived it

, for we have already used this verse to

derive

from it that the yavam acquires her through intercourse

in the usual manner?!

And we answer:

That

teaching—

“to establish a name for his brother” is the source

, for it implies that yibbum is performed

in a manner that establishes a name

[that is suitable for fathering a son from her through this intercourse], namely, intercourse in the usual manner.

And

therefore,

when the verse comes

“Her yavam shall come to her,” it teaches that

whether

he had intercourse with her

unintentionally, whether intentionally, whether under duress or willingly

, he acquires her.

To the matter itself: Rav Yehuda said: A sleeping man does not acquire his yevama.

The Gemara explains his reason:

For the verse says, “Her yavam shall come to her

”—until he intends

it as intercourse.

We challenge this:

But it was taught in a beraita:

The yavam acquires his yevama

whether he is awake or asleep?!

And we answer:

Say

that the beraita means as follows:

whether

his yevama was

awake or

she was

asleep

, but a sleeping yavam does not acquire her.

But the Gemara still raises a difficulty:

But it was taught in a beraita:

The yavam acquires his yevama

whether he is awake or asleep, whether she is awake or asleep.

Thus, even a sleeping yavam acquires her!

And we answer:

Here,

in the beraita,

with what are we dealing

? He was not completely asleep, but

dozing.

A completely sleeping man, however, does not acquire her, in accordance with Rav Yehuda.

And we explain:

What are the circumstances of dozing?

Rav Ashi said: He is asleep but not asleep, awake but not awake

[asleep but not asleep, awake but not awake, as we translate, “Jacob awoke from his sleep”: “and he awoke,” Rashi, Ta’anit 12a].

For example, they call him and he answers

[when they call him, he answers].

And

however,

he does not know how to reason out a response

[to answer with an argument], for if he is asked something that requires reflection, he does not know how to respond while dozing [there].

But when they remind him

[when they remind him and say, “You heard something like this,”]

he remembers

[he recalls it].

To the matter itself: Rabba said: One who fell from the roof and accidentally penetrated

a woman is

liable for four matters.

And

if he accidentally penetrated

his yevama—he

does not acquire her

as a wife through this act:

The Gemara explains: He is liable

for damage,

pain and loss of livelihood

and

medical expenses.

But

with regard to payment for

humiliation, he is not liable

, since he did not intend to humiliate her.

For the Master said: One is not liable for humiliation unless he intends

to humiliate.

Rava said: A yavam who

intended

“to strike against a wall”

, meaning that he did not intend intercourse at all,

but struck against his yevama—

he does not acquire her.

But if he intended

to strike against an animal

, meaning that he intended it as intercourse,

but struck against his yevama—

he acquires her. For

he intended intercourse in the world.

We learned in the Mishna:

Whether one makes initial contact

and whether one completes intercourse, he acquires her. It did not distinguish between one type of intercourse and another. And likewise, one who has intercourse with any of the forbidden relationships stated in the Torah:

Ulla said: From where is initial contact

with regard to forbidden relationships, that it is prohibited

by Torah law?

As it is stated: “And a man who lies with a menstruating woman

[a menstruating woman],

and uncovers her nakedness

, he has uncovered her source” —

from here initial contact

is prohibited

by Torah law.

And we explain:

We find this with regard to a menstruating woman,

that initial contact with her is prohibited.

With regard to the other forbidden relationships, from where

do we know that initial contact is also prohibited with them?

And if you would say,

perhaps

we should derive it from a menstruating woman

, that initial contact with her is prohibited, and apply this to all the forbidden relationships.

This can be refuted:

What is distinctive about a menstruating woman

, which contains an additional stringency?

For

she

renders the one who has intercourse with her impure.

For one who has intercourse with a menstruating woman does not become impure merely through touching her, like one who touches a menstruating woman and becomes impure with impurity lasting until evening; rather, intercourse with her renders him impure for seven days, like the menstruating woman herself. One cannot derive the law of other cases from a menstruating woman, as they do not possess this additional feature.

Rather, initial contact

with all the forbidden relationships is derived

from the wife of one’s brother

, with whom initial contact is prohibited, as the Gemara proceeds to explain.

As it is written

concerning a brother’s wife:

“And a man who takes his brother’s wife”—

“It is a menstruating woman!”

But this is difficult:

Is a brother’s wife always a menstruating woman

and never ceases to be so, such that the Torah says, “It is a menstruating woman”!?

Rather,

the verse comes to teach by this expression that the status of a brother’s wife is

like that of a menstruating woman—

Just as a menstruating woman

is forbidden even

through initial penetration, so too a brother’s wife

is forbidden even

through initial penetration.

And from a brother’s wife, by an analogy based on what we find, we derive that all the arayot are forbidden even through initial penetration.

And we challenge this:

What is distinctive about a brother’s wife

is that she has a particular feature not found with the other arayot,

for it is within a person’s power

of a man

to add

many women to his brother under the prohibition of a brother’s wife,

for if he wishes, he can marry one after another, even

a thousand

women [if the brother wishes, he may marry even a thousand women], and all of them are forbidden to his brother under the prohibition of a brother’s wife.

Therefore, from a brother’s wife you can derive only those arayot who are forbidden to him because of a marital relationship, which a person can increase, such as: a father’s wife, his daughter-in-law, his mother-in-law, and his wife’s sister. But you cannot derive from here the case of his mother, his sister, or his daughter, and the like, since it is not within his power to increase them.

Rather, it is derived

the prohibition of initial penetration with the other arayot

from a paternal aunt and a maternal aunt,

for with regard to them as well the Torah revealed that initial penetration is forbidden.

As it is written: “And the nakedness of your mother’s sister and your father’s sister you shall not uncover, for he has uncovered his near kin”.

You have therefore learned from a maternal aunt and a paternal aunt that initial penetration is forbidden with them, and from them you derive the same for all the arayot.

And we challenge this:

There is room to challenge: What is distinctive about a paternal aunt and a maternal aunt, for

it is

a prohibition that comes automatically.

That is, it is a perpetual prohibition: there was never a time when they were fit to be permitted to him, and an additional prohibition did not arise because of some new act that occurred with them. They are therefore not comparable to the wives of relatives, who were initially fit to be permitted to him but became forbidden because of a newly performed act of betrothal.

And from here you can derive only those arayot whose prohibition comes automatically, such as his mother, his sister, and his daughter. But you cannot resolve from here the case of arayot that come about through betrothal; from where do you know that initial penetration is forbidden with them as well?

And we answer: Indeed, by an analogy based on what we find

from one

of the arayot with which initial penetration is forbidden,

it cannot be derived [it cannot be derived from any one of the three arayot mentioned] by analogy based on what we find for all the arayot, since deriving it separately from each one of them is subject to a challenge.

[one cannot learn the law for all the forbidden relations from any one of the three relations mentioned], because a separate challenge can be raised against deriving it from each one.

However,

it can be derived,

it is possible to derive the rule for all the arayot

from two

[from two of the three], by deriving it from the common side shared by them, as the Gemara proceeds to explain.

We examine this:

What can be derived—

which two of the three can serve as the basis for deriving the rule for all the arayot through their common side?

If you say:

Let it be derived

all the arayot

from a brother’s wife, a paternal aunt, and a maternal aunt [a paternal aunt and a maternal aunt are considered one for purposes of deriving from them, since they are written in the same verse].

For if you challenge: What is distinctive about a paternal aunt and a maternal aunt, since their prohibition comes automatically—the case of a brother’s wife proves otherwise, for its prohibition does not come automatically.

And if you challenge: What is distinctive about a brother’s wife, since it is within his power to increase the prohibition—the case of a paternal aunt and a maternal aunt, with regard to which it is not within his power to increase the prohibition, proves otherwise.

The common side shared by them proves that they are forbidden to him as an ervah, and with regard to them initial penetration is treated like complete intercourse; I, too, will include all the arayot in this rule.

Nevertheless, we will still not know from here that initial penetration is forbidden with a married woman!

For with regard to a married woman there is one challenge that applies equally to all of them:

What is distinctive about these, for they are forbidden because of near kinship

[kinship], and you are therefore deriving only arayot whose prohibition is because of kinship. But a married woman, whose prohibition is not because of kinship—from where do you know that initial penetration is forbidden with her!?

The Rashba wrote that it appears from Rashi’s words that he does not have the following passage in his version.

Perhaps you will say:

Rather, let all the arayot be derived

from the common side

of a menstruating woman and a paternal aunt and a maternal aunt,

for you cannot challenge this derivation with one challenge that applies equally to all of them, since a menstruating woman is likewise not a prohibition of “near kin.”

You can still challenge it:

What is distinctive about these, for they are a prohibition that comes automatically,

and a person does not bring it about!

and a person does not bring it about!

And we conclude:

Rather, let it be derived

for all the arayot

from a menstruating woman and a brother’s wife

together. Since

what challenge could you raise,

what challenge can you raise against the derivation from the common side shared by the two of them?!

Rav Aḥa, son of Rav Ika, objected:

I can challenge this derivation as well:

What is distinctive about a menstruating woman

[whose flow of blood renders her forbidden],

and a brother’s wife

[whom the brother renders forbidden],

for they have no possibility of becoming permitted during the lifetime of the one who renders them forbidden!

For with regard to a menstruating woman, as long as the blood that “forbids” her is “alive” [flowing], she remains forbidden and has no possibility of becoming permitted. And with regard to a brother’s wife, as long as the brother who “forbids” her is alive, she remains forbidden, even if he divorces her.

Say this with regard to a married woman,

whose husband is the one who “renders her forbidden”:

for she can become permitted during the lifetime of the one who renders her forbidden,

for if the husband [who “renders her forbidden”] gives her a bill of divorce while he is still alive, she becomes permitted even during his lifetime!

He said

in astonishment

to him, Rav Aḥa of Difti, to Ravina,

concerning the words of Rav Aḥa, son of Rav Ika:

Is that so

that

a menstruating woman and a brother’s wife

only

have no possibility of becoming permitted during the lifetime of the one who renders them forbidden, but afterward they have the possibility of becoming permitted?!

That is, Rav Aḥa, son of Rav Ika’s wording implies that a menstruating woman and a brother’s wife have no possibility of becoming permitted during the lifetime of the one who renders them forbidden, but after the one who renders them forbidden dies, they become permitted automatically. But this is not so, for:

A menstruating woman

even after the one who renders her forbidden has “died,” that is, after her blood flow has ceased, is still not permitted; rather: