There,1 if one is to follow the view of him who said that a levirate bond does exist,2 a levirate bond exists;3 and if one is to follow him who said4 that it is forbidden to annul the precept of levirate marriage,5 well, it is forbidden to annul the precept of levirate marriage. Here, however, it is possible to assume that every one will happen to get his own.6
IF BOTH ANTICIPATED [THE BETH DIN] AND MARRIED THEY ARE NOT TO BE PARTED FROM THEM etc. Shila recited: Even if both were priests.7 What is the reason?8 — Because a haluzah is only Rabbinically forbidden,9 and in the case of a doubtful haluzah10 the Rabbis enacted no preventive measures.11 But is a haluzah only Rabbinically forbidden? Surely it was taught: From Put away12 one might only infer the prohibition concerning a divorced woman; whence that of a haluzah? Hence it was explicitly stated, And a woman!13 The prohibition is really Rabbinical, and the Scriptural text is a mere prop.14
MISHNAH. THE COMMANDMENT OF THE LEVIRATE MARRIAGE DEVOLVES UPON THE [SURVIVING ELDER BROTHER]. IF A YOUNGER BROTHER, HOWEVER, FORESTALLED HIM, HE IS ENTITLED TO ENJOY THE PRIVILEGE.
GEMARA. Our Rabbis learned: And it shall be, that the firstborn15 implies16 that the commandment of the levirate marriage devolves upon the [surviving elder brother];17 that she beareth15 excludes a woman who is incapable of procreation, since she cannot bear children: shall succeed in the name of his brother,15 in respect of inheritance.18 You say, 'in respect of inheritance';19 perhaps it does not [mean that]. but, 'in respect of the name':20 [If the deceased, for Instance, was called] Joseph [the child] shall be called Joseph; If Johanan he shall be called Johanan! — Here it is stated, shall succeed in the name of his brother15 and elsewhere it is stated, They shall be called after the name of their brethren in their inheritance,21 as the 'name' that was mentioned there [has reference to] inheritance, so the 'name' which was mentioned here [has also reference] to inheritance. That his name be not blotted out15 excludes a eunuch22 whose name is blotted out.
Said Raba: Although throughout the Torah no text23 loses its ordinary meaning, here the gezerah shawah24 has come and entirely deprived the text of its ordinary meaning.25
But apart from the gezerah shawah, would it have been thought that 'name' actually signifies 'a name'? To whom, then, does the All Merciful address the instruction!26 If to the levir, the wording should have been. 'shall succeed in the name of thy brother'; if to the Beth din, the wording should have been, 'shall succeed in the name of his father's brother'!27 — It is possible that the All Merciful thus addressed the Beth din: Tell the levir, 'He28 shall succeed to the name of his29 brother'; but the gezerah shawah has come and deprived the text entirely [of its ordinary meaning].
Now that it has been stated that Scripture speaks of the elder brother only, why not assume that the firstborn must perform the duty of the levirate marriage and that any ordinary brother may not contract a levirate marriage at all!30 — If so, what need31 was there for the All Merciful to have excluded the 'wife of his brother who was not his contemporary'?32
R. Aha objected: Might it not be suggested that the exclusion33 had reference to a mother's firstborn son!34 -You could not possibly have assumed that,35 since the All Merciful has made levirate marriage dependent on inheritance, and the right of inheritance derives from the father and not from the mother.36 But might It not be suggested that where there is a firstborn the commandment of the levirate marriage shall be observed;37 where, however, there is no firstborn the commandment of the levirate marriage shall not be observed?38 Scripture stated, And one of them died;39 does not this include also the case where the firstborn died,40 and so the All Merciful has said that the younger shall perform the duty of the levirate marriage?
But perhaps41 [the text speaks of a case] where the younger died, and the All Merciful says that the firstborn shall perform the duty of the levirate marriage? — Surely, the All Merciful has excluded the wife of his brother who was not his contemporary!42
May it be suggested that where there is no firstborn the younger brother, if he forestalled [the Beth din],43 is entitled to the privilege,44 but that where there is a firstborn the younger brother, even if he forestalled him, is not entitled to the privilege? — Scrip. stated, If brethren dwell together,45 the dwelling of one brother was compared to that of the other.46 May it be suggested that where there is a firstborn one turns to the eldest47 but where there is no firstborn one does not turn to the eldest?48 Why, then, did Abaye the Elder teach that the commandment to perform the duty of the levirate marriage is incumbent Upon the elder brother; if he refuses, the younger brother is approached;49 if he also refuses,50 the elder is approached again!51 — [Scripture has designated him] as the firstborn;52 as with the firstborn the cause is his birthright, so with the elder brother the cause is his Seniority. Might it be said that when the firstborn performs the duty of the levirate marriage he also takes the inheritance53 but when an ordinary brother performs the duty of the levirate marriage, he54 does not take the inheritance?53 Scripture stated, Shall succeed in the name of his brother55 and behold he has succeeded!56
But since the All Merciful called him the firstborn;57
Original footnotes renumbered.
- Where both sisters are bound by the levirate tie.
- Between the levir and his deceased brother's widow from the moment death took place.
- Consequently both widows are forbidden in levirate marriage, each being in relation to the other a sister of one's zekukah. But such prohibition is never removed even when one of them subsequently performed the halizah with one of the brothers and has thus severed her levirate bond, for once a yebamah is prohibited to her deceased husband's brother for a single moment, she is in the same category as a widow of a brother who died with issue.
- The reason why none of the surviving brothers may marry one of the two widows.
- Were one brother to be allowed to marry one of the widows he would not be able either to contract levirate marriage or to participate in halizah with the other widow (she being forbidden to him as 'his wife's sister'), should the other brother happen to die before he married that widow; and thus the entire precept of levirate marriage would in such a case be annulled.
- Now, if the widow whom one of them bad married was really his yebamah. the other must be a total stranger to him and to the other brother; and since this might be said in the case of each pair of brothers where the marriage had already taken place. They are not, in the face of such a possibility. to be parted (Rashi). [According to the alternative interpretation (supra p. 142, n. 4.) in face of such a possibility the Rabbis saw no reason for enacting the preventive measure forbidding levirate marriage after halizah had been performed.]
- Who are forbidden to marry a haluzah.
- One of them, surely, must inevitably have married a haluzah since, In case she is not his yebamah, she is the betrothed of the stranger with whose brother (v. our Mishnah) she had performed halizah'
- To marry a Priest.
- As here where each brother can claim that the one he married was his yebamah.
- The prohibition consequently does not apply. Hence they may continue to live with the widows they had married.
- Lev. XXI, 7, speaking of priests.
- Ibid.. which proves that the prohibition is Pentateuchal.
- Asmakta, v. Glos.
- Deut. XXV, 6.
- Lit., 'from here (it is deduced)'.
- The text of Deut. XXV, 6. being connected with v. 5 preceding it, thus: Her husband's brother shall … take her to him to wife (v. 5) and he shall be the firstborn (ibid. v. 6). [H] in [H] may be rendered either, and it shall be (as E.V.) or and he (i.e., the levir) shall be as the Talmud here renders it.
- Only the brother who marries the widow, and no other brother, is entitled to the inheritance of the deceased.
- Taking the 'brother' who marries the widow as the subject of 'shall succeed'. (Cf. supra n. 3)'
- The subject of 'shall succeed' being 'the child' that will be born from the levirate union.
- Gen. XLVIII, 6.
- Since he 15 Incapable of procreation. his wife is exempt alike from yibbum and halizah.
- Though it had been given a Midrashic interpretation.
- V. Glos. [H] the word analogy between the expression 'name' in the two cited texts.
- So that despite the ordinary meaning of the text, the child born from the levirate union need not be named after the deceased.
- About the name.
- Consequently. name in this text could not possibly have borne its ordinary meaning, but must have that given to it in the exposition supra. viz., that Beth din are instructed to hand over the inheritance Of the deceased to the levir who married his widow. An objection against Raba!
- The child that will be born.
- The levir's.
- Neither when there is, nor when there is not, a firstborn.
- Lit., 'why to me'.
- He would in any case have been excluded since he was not the firstborn.
- Of the 'wife of a brother who was not his contemporary'.
- Who was the paternal brother of the deceased.
- That a mother's firstborn should be regarded as the legal firstborn in respect of the levirate marriage.
- Hence there was no need to exclude him. The exclusion consequently indicates that by firstborn, in this context, any elder brother was meant.
- Either by the firstborn or by any other of the brothers, and that for this reason the exclusion of 'a brother who was not his contemporary' was necessary.
- At all; by any brother.
- Deut. XXV, 5, which refers to all cases, even to that where there were Only two brothers.
- Since the text does not specify any particular case.
- Lit., 'and say'.
- Were it as suggested this exclusion would be unnecessary. Cf. supra p. 145, nn. 6 and 13.
- Married before the Beth din could prevent him.
- Of the levirate marriage.
- Deut. XXV. 5.
- All brothers must be equal in respect of the levirate marriage.
- If the other brothers refused to marry the widow it should be his duty to marry her.
- Not being the firstborn it is no more his duty to marry the widow than it is that of his brothers.
- I.e., all the brothers are approached in the order of seniority. V. Tosaf. s.v. [H], a.l., and cf. Rashi a.l.
- I.e., when the youngest of all has also refused to marry the widow.
- Now, since the brothers are approached. in the order of seniority. it is obvious that it is always the eldest, not necessarily the firstborn, upon whom the duty of the levirate marriage devolves!
- V. supra p. 144, n. 3.
- Of his deceased brother.
- The ordinary brother.
- Deut. XXV, 6.
- Hence any brother who marries the widow is entitled to the inheritance of the deceased.
- And not merely 'the elder' or 'the eldest'.
what practical ruling was thereby intended?1 — To impair his rights; As a firstborn does not take a double portion in his father's prospective property2 in the same way as he does in that which is already In his possession,3 so does this one4 take no [double]5 portion In [his father's] prospective property6 as he does in that which is already in his possession.7
MISHNAH. IF A MAN IS SUSPECTED OF [INTERCOURSE]8 WITH A SLAVE WHO WAS LATER EMANCIPATED, OR WITH A HEATHEN WHO SUBSEQUENTLY BECAME A PROSELYTE, LO, HE MUST NOT MARRY HER.9 IF, HOWEVER, HE DID MARRY HER THEY NEED NOT BE PARTED.10 IF A MAN IS SUSPECTED OF INTERCOURSE8 WITH A MARRIED WOMAN11 WHO, [IN CONSEQUENCE,] WAS TAKEN AWAY FROM HER HUSBAND,12 HE MUST LET HER GO EVEN THOUGH HE HAD MARRIED HER.13
GEMARA. This implies that she may become a proper prose lyte.14 But against this a contradiction is raised. Both a man who became a proselyte for the sake of a woman and a woman who became a proselyte for the sake of a man, and, similarly, a man who became a proselyte for the sake of a royal board, or for the sake of joining Solomon's servants,15 are no proper proselytes. These are the words of R. Nehemiah, for R. Nehemiah used to Say: Neither lion-proselytes,16 nor dream-proselytes17 nor the proselytes of Mordecai and Esther18 are proper proselytes unless they become converted at the present time. How can it be said, 'at the present time'? — Say 'as at the present time'!19 -Surely concerning this it was stated that R. Isaac b. Samuel b. Martha said in the name of Rab: The halachah is in accordance with the opinion of him who maintained that they were all proper proselytes. If so, this20 should have been permitted altogether!21 - On account of [the reason given by] R. Assi. For R. Assi said,22 Put away from thee a froward mouth, and perverse lip's etc.23
Our Rabbis learnt: No proselytes will be accepted in the days of the Messiah.24 In the same manner no proselytes were accepted in the days of David nor in the days of Solomon.25 Said R. Eleazar: What Scriptural [support is there for this view]? — Behold he shall be a proselyte who is converted for my own sake,'26 he who lives with you shall be settled among you,27 he only who 'lives with you' in your poverty shall be settled among you; but no other.
IF A MAN IS SUSPECTED OF INTERCOURSE WITH A MARRIED WOMAN etc. Rab said: [This28 must be confirmed] by witnesses.29 Said R. Shesheth: It seems30 that Rab made this statement while he was sleepy and about to doze off;31 for it was taught: 'If a man is suspected of intercourse with a married woman who, in consequences was taken away from her husband32 and was subsequently divorced by another man,33 he34 need not part with her once he has married her'. Now, how is this to be understood? If it is a case where witnesses35 are available, of what avail is it that another man stepped in and checked the rumour?36 [Must we] not then [conclude that this is a case] where there were no witnesses;35 and the reason37 is because another man stepped in and checked the rumour, but had that not happened she would have been taken away from him?38 — Rab can answer you: The same law, that where witnesses35 are available she is taken away from him and that where no witnesses are available she is not taken away, applies also to the case where no other man stepped in and checked the rumour, but this it is that was meant: 'Even if another man stepped in and checked the rumour it is not proper for him39 to marry her'.40
An objection was raised: This41 has been said in the case only where she had no children,42 but if she has children42 she must not be divorced.43 If, however, witnesses to the seduction44 presented
themselves, she must go away from him45 even if she had ever so many children!46 — Rab explains our Mishnah as dealing with the case where she has children and witnesses against her are available.
What, however, impels Rab to explain our Mishnah as dealing with a case where she has children and where witnesses against her are available, and to give as the reason why she is to be taken away, because witnesses are available, and [to imply that] if witnesses are not available she is not taken away; let him rather explain [our Mishnah as dealing with the case] where she has no children [and has to be taken away] even though no witnesses are available! Raba replied: Our Mishnah presented a difficulty to him. What point was there [he argued] for using the expression 'WAS TAKEN AWAY'?47 It should have been stated 'he parted from her';48 but any such expression as 'was taken away' implies 'by the Beth din' and the Beth din take away only where witnesses are available.49
If you prefer I may say that that Baraitha50 represents the view of Rabbi;51 for It was taught: When a pedlar52 leaves a house and the woman within is fastening her sinnar,53 since the thing is ugly she must, said Rabbi, go.54 If spittle is found55 on the upper part of the curtained bed, since the thing is ugly,56 she must, said Rabbi, go.54
Original footnotes renumbered.
- For all practical purposes, as it has been shewn, the elder or eldest brother has the same privileges as the firstborn; why, then, was the expression [H], (firstborn) used instead of [H] (elder or eldest) which would have included the firstborn?
- Property which was not in his father's possession at the time of his death.
- At the time he died.
- The levir who marries the widow and is given a double share (his and that of the deceased) in the inheritance of their father.
- Rashi. [Aliter: the levir inherits only such property of the deceased brother as had been in the latter's possession at the time of his death. Any property that fell into his possession subsequent thereto he shares equally with the other brothers. On this view the levir has no claim to the share which the deceased brother would have been entitled to in the property of their father had he survived the father, v. Nimmuke Joseph and Me'iri.]
- V. supra note 3.
- V. note 4.
- [H] lit., 'spoken against' 'having to be a defendant'. Rt. [H] 'to plead', 'sue'.
- Since such a marriage might confirm the rumour.
- Lit., 'they do not take out of his hand'.
- Lit., 'the wife of a man'.
- Lit., 'and they (i.e., Beth din) took her out from under his hand'. He was ordered to divorce her.
- Because the woman is Biblically forbidden to both husband and seducer. (V. Sot. 27b).
- Even though her conversion was solely due to her desire to contract the marriage.
- To enter the king's employ.
- [H] 'proselytes of lions', those who, like the Samaritans (II Kings XVII, 25), were converted to Judaism by the fear of divine visitation.
- [H] 'proselytes of dreams', those who embraced Judaism in response to a dream or the advice of a dreamer.
- V. Esth. VIII, 17. Those who from similar motives of expediency adopt the Jewish faith.
- In the dire days after the Hadrianic Wars, when the proselyte 15 not actuated either by motives of fear or of gain. Now, how is this Baraitha to be reconciled with Our Mishnah?
- The marriage of the proselyte spoken of in our Mishnah.
- Lit., 'even as at the start'. Why then was it stated, HE MUST NOT HARRY HER?
- In explaining the reason for the prohibition of marrying the proselyte. (Rashi); v. Keth., Sonc. ed. p. 123. n. 5'
- Prov. IV, 24. Owing to the rumour of Previous Intercourse one should not contract such a marriage. V. supra p. 147, n. 10.
- When Israel will be Prosperous and Prospective proselytes will be attracted by worldly considerations.
- During Israel's heyday. V. previous note.
- Or who is converted while I am not with you (v. Rashi, a.l.) i.e., while Israel is in exile and forsaken by God.
- Isa. LIV, 15, according to the Midrashic interpretation of R. Eleazar. The rt. [H] which E.V. renders 'to gather' is here interpreted 'to become a proselyte', 'to be converted'.
- The suspicion.
- Who were present during the misconduct.
- Lit., 'I would say'.
- Lit., 'dozing and lying'.
- V. supra p. 147. nn. 9' 12 and 13.
- To whom she was married after her first husband had divorced her.
- The paramour.
- V. supra note 3.
- By his marriage. The testimony of the witnesses surely caused her to be permanently prohibited to the paramour.
- Why the paramour need not divorce her once he has married her.
- How then could Rab maintain that she is taken away Only where there are witnesses?
- The paramour.
- Only if he already married her may she in this case remain with him.
- That the paramour must divorce her.
- From the first husband.
- A divorce would be regarded as a confirmation of the suspicion, and the children would thereby be tainted as bastards.
- Lit., 'uncleanness'.
- The paramour.
- Which shews, contrary to the Opinion of Rab, that when see has no children 'she is to part from her paramour even where witnesses are not available.
- [H], lit., 'they (i.e. Beth din) took her away'.
- [H], lit., 'he (i.e., the husband) brought her out'.
- No wife may be taken away from her husband because of a mere rumour or suspicion.
- Which requires a wife who had no children to leave her husband even where no witnesses are available.
- Who forbids a wife to her husband even on the grounds of a rumour or suspicion. According to the other Rabbis, however, who are the majority, the woman, as Rab said, need not be taken away where no witnesses are available, even if she has no children.
- [H] Rashi explains rokel as dealer in women's perfumes.
- The [H] was a kind of breech-cloth or petticoat women wore as a matter of chastity (v. Rashi, a.l.).
- Even if there were no witnesses that misconduct took place.
- After the pedlar had left the house.
- Only the woman lying face upwards could have spat on that spot. Intercourse may. therefore, be suspected.