Babylonian Talmud: Tractate Nedarim

Folio 74a

MISHNAH. IF A WOMAN WAITS FOR A YABAM,¹  WHETHER FOR ONE OR FOR TWO,²  — R. ELIEZER RULED: HE [THE YABAM] CAN ANNUL [HER VOWS]. R. JOSHUA SAID: [ONLY IF SHE WAITS] FOR ONE, BUT NOT FOR TWO. R. AKIBA SAID; NEITHER FOR ONE NOR FOR TWO. R. ELIEZER ARGUED: IF A MAN CAN ANNUL THE VOWS OF A WOMAN WHOM HE ACQUIRED HIMSELF, HOW MUCH THE MORE CAN HE ANNUL THOSE OF A WOMAN GIVEN TO HIM BY GOD!³  SAID R. AKIBA TO HIM; IT IS NOT SO; IF YOU SPEAK OF A WOMAN WHOM HE ACQUIRES HIMSELF, THAT IS BECAUSE OTHERS HAVE NO RIGHTS IN HER; WILL YOU SAY [THE SAME] OF A WOMAN GRANTED TO HIM BY GOD, IN WHOM OTHERS TOO HAVE RIGHTS!⁴  R. JOSHUA SAID TO HIM: AKIBA, YOUR WORDS APPLY TO TWO YEBAMIM; BUT WHAT WILL YOU ANSWER IF THERE IS ONLY ONE YABAM? HE REPLIED, THE YEBAMAH IS NOT AS COMPLETELY UNITED TO THE YABAM⁵  AS AN ARUSAH IS TO HER [BETROTHED] HUSBAND.⁶

GEMARA. It is well according to R. Akiba, for he maintains that the bond [wherewith she is bound to the yabam] involves no legal consequences;⁷  also according to R. Joshua, who maintains that the tie is a real one.⁸  But what is R. Eliezer's reason? Even if the tie is a real one, selection is not retrospective?⁹  — R. Ammi answered: [The circumstances are] e.g., that he [the yabam] made a [betrothal] declaration,¹⁰  R. Eliezer ruling with Beth Shammai that a declaration completely acquires.¹¹  But R. Joshua says thus: That applies only to one yabam, but not to two yebamin; for can there be such a case that though when his brother comes he can prohibit her to him by cohabitation or divorce, and yet he [the first] can annul!¹²  Whilst R. Akiba maintains that the bond carries with it no legal consequences. Now, according to R. Eleazar,¹³  who maintained that in the opinion of Beth Shammai a declaration is binding only in that it renders her co-wife¹⁴  ineligible,¹⁵  what can be said?¹⁶  — The reference here is to one who had come before Court and been ordered to support her;¹⁷  and [the law] is in accordance with the dictum of R. Phineas in Raba's name: Every woman who vows, vows conditionally upon her husband's assent.

1. This is the designation of the widow between the death of her husband and her union with or rejection by the yabam.
2. If there is more than one, she waits for all, as anyone may marry or free her.
3. Lit., 'heaven'. The yabam acquires his sister-in-law through a Biblical precept.
4. I.e., all the brothers of the deceased have the same rights in her.
5. [MS.M.: HER HUSBAND v. infra p. 236, n. 3.]
6. The meaning of this is discussed below.
7. Lit., 'there is no real tie'. E.g., in respect of vows this tie gives him no right of veto.
8. Hence, if there is only one yabam, he can annul her vows, but not if there are two, since it is not clear which will take her.
9. Bererah, a term denoting retrospective validity of a subsequent selection. CF. supra Mishnah 45b, v. Glos. Thus, here, when she vows, it is not clear which yabam will eventually marry her. [Unlike, however, elsewhere in the Talmud where this principle is debated and gives rise to difference of opinion, its application here would not be retro-active, as we are not considering whether the annulment by one yabam before marriage becomes effective after marriage, but whether it takes effect immediately. And in regard to this it is taken as axiomatic that there is no bererah, as in the case of two yebamim it cannot be stated with certainty which of the two will be her husband (cf. Adereth. S. Kiddushin). The term bererah is accordingly used here in a loose sense and in fact does not occur in the parallel passage, Yeb. 29b; v. a.l.]
10. rntn in reference to a yabam means a formal declaration, 'be thou betrothed to me'.
11. I.e., by means of this declaration she is his wife in all legal respects; hence that yabam can annul her vows. — The view of Beth Hillel is that only cohabitation effects this.
12. I.e., even in Beth Shammai's view a declaration is a legal betrothal only if there is but one yabam, but not if there are two. Because even after the declaration, if the other cohabited with her or divorced her, she is forbidden to the first.
13. An amora; the Tanna in the Mishnah is R. Eliezer.
14. Two or more wives of the same husband are co-wives (Zaroth) to each other.
15. Lit., to reject the co-wife'. In the following case; A, B and C, are three brothers, A and B being married to X and Y, two sisters. If A dies childless and C makes a declaration to X (but does not consummate the marriage), and then B dies childless too, Beth Shammai rule that X, A's widow, remains C's wife; hence Y, B's wife and the would-be co-wife of X, is ineligible to him, since one cannot take in marriage a yebamah who is also his wife's sister. Thus we see that Beth Shammai rule that the declaration made by C is Biblically valid as betrothal, for otherwise he would be regarded as having become the yabam of two sisters simultaneously, in which case a different law applies. Thereon R. Eleazar observed, only in this respect did Beth Shammai hold a declaration to be Biblically binding; but should he subsequently desire to free her, a divorce is not sufficient (as it would be had the marriage been consummated), but halizah too is needed.
16. Since then she is not his wife in all respects, why can he annul her vows?
17. If the yabam delayed to marry or free her, she could claim support from him. V. Yeb. 41b.

We learnt: R. ELIEZER ARGUED, IF HE CAN ANNUL THE VOWS OF A WOMAN WHOM HE ACQUIRED HIMSELF, SURELY HE CAN ANNUL THOSE OF A WOMAN GIVEN TO HIM BY GOD! But if it means that he made her a declaration, it is [also] a case of acquiring her himself? — It means that he acquired her himself through the instrumentality of Heaven.¹

You may [now] solve Rabbah's problem? [Viz.,] in the view of Beth Shammai, does a declaration effect erusin or nissu'in?²  You can solve it that it effects nissu'in; for if it effects erusin, surely we learnt, [In the case of] a betrothed maiden, her father and [betrothed] husband [jointly] annul her vows?³  Said R. Nahman b. Isaac: What is meant by 'He can annul [her vows]'? He can annul [them] in conjunction with her father.⁴

It was taught likewise as R. Ammi: If a woman waits for a yabam, whether for one or for two, — R. Eliezer ruled: he can annul [her vows]; R. Joshua said: [Only if she waits] for one, but not for two; R. Akiba said, Neither for one nor for two. R. Eliezer argued: If a woman, in whom he has no portion at all until she comes under his authority [by marriage], yet once she comes under his authority, she is completely his;⁵  then a woman in whom he has a portion even before she comes under his authority,⁶  when she does come under his authority, she is surely completely his! Said R. Akiba, No. If you say this in the case of a woman whom he acquires himself, that is because just as he has no portion in her [before marriage], so have others no portion in her; will you say [the same] of a woman gifted to him by God, in whom, just as he has a portion, so have others too a portion in her! Thereupon R. Joshua said to him: Akiba, your words apply to two yebamim: what will you answer in respect of one yabam? He replied: Have we then drawn a distinction [in other respects] between one yabam and two yebamim, whether he makes her a declaration or not? and just as it is in reference to other matters, so it is in reference to vows.⁷  Thus did Ben 'Azzai lament, 'Woe to thee, Ben 'Azzai, that thou didst not study under R. Akiba.'⁸  How

1. Scripture in the first place giving him a unique right in her.
2. On the hypothesis that the Mishnah refers to a yabam who made a declaration.
3. Whilst this Mishnah merely mentions the yabam.
4. Though the Mishnah does not state it, that is merely because it deals only with the question whether a yabam has annulment rights at all, without inquiring into the extent of such rights.
5. That he may annul her vows either alone (after nissu'in) or in conjunction with her father.
6. The yabam has a presumptive claim upon her as soon as her husband dies childless.
7. The reference is explained on 75a; — hence, since one of two yebamim cannot annul, one himself is also unable to annul. Lit., 'wait in attendance upon R. Akiba'.
8. He was so impressed with the keen intellect displayed by R. Akiba in this controversy, that he voiced his regret at not having studied under him. — Ben 'Azzai was a younger contemporary of Akiba, and in spite of this lament he followed R. Akiba in halachah and exegesis; whilst his tone towards him is that of a pupil to his teacher. For that reason the amoraim concluded that he was a disciple-colleague. V. Weiss. Dor. II, 112. Jer. B.B. IX, 17b; Bab. ibid. 158b; Jer. Shek. III, 47b.