Let her1 continue to live with him in any case. For if [a deaf woman] is acquired2 then she is of course acquired,3 and if she is not acquired,4 then she is a mere stranger.5 And should you argue, 'why should the minor wait until she grows up and then performs halizah? Let her6 continue to live with him [for the same reason7 that] if she is [properly] acquired4 then she is of course acquired,8 and if she is not acquired,4 then she is a mere stranger';9 if so [it could be retorted] whereby should the deaf [widow] be released!10
R. Shesheth said: Logical deduction leads also to the interpretation R. Hisda imparted to Rab's ruling.11 For it was taught: If two brothers were married to two orphan sisters,12 a minor and a deaf woman, and the husband of the minor died, the deaf widow is released by means of a letter of divorce13 while the minor waits until she is of age, when she performs halizah.14 If the husband of the deaf woman dies, the minor is released by a letter of divorce15 while the deaf widow is forever forbidden [to marry again].16 If, however, he cohabited with the deaf widow17 he must give her a letter of divorce and she18 becomes permitted [to marry any other man].19 Now, if you grant that a deaf wife is partially acquired20 [and that concerning] a minor [it is doubtful whether] she is [fully] acquired21 or not acquired [at all], one can well see the reason why when he cohabited with the deaf widow he gives her a letter of divorce and she becomes permitted [to marry any other man]. For you may rightly claim that in any case [she becomes permitted]. If the minor is acquired,21 [the deaf widow] is rightly released as his wife's sister;22 and if she is not acquired [at all] he has quite lawfully contracted with her23 the levirate marriage.24 If you contend, however, [that concerning] a deaf woman [it is doubtful whether] she is acquired19 or not acquired [at all], and that a minor is partially acquired,20 [the difficulty arises] why should the deaf widow, if he cohabited with her and gave her a letter of divorce, be permitted [to marry again] when the cohabitation with her was unlawful,25 and an unlawful cohabitation does not release a woman?26 — It is possible that this statement represents the view of27 R. Nehemiah who ruled that an unlawful cohabitation exempts [a widow] from halizah.28
If [this statement represents the view of] R. Nehemiah read the final clause: 'If a man was married to two orphans,29 one of whom was a minor and the other deaf, and died 'and the levir cohabited with the minor and then cohabited with the deaf widow, or a brother of his cohabited with the deaf widow,30 both are forbidden to him.31 How do they obtain redress? The deaf woman is released by a letter of divorce31 while the minor waits until she is of age 'when she performs halizah'.32 Now, if you grant33 that a deaf wife is partially acquired [and that concerning] a minor [it is doubtful whether she is fully] acquired or not acquired [at all],34 and [that the opinion in this statement] is that of the Rabbis,35 one can well understand the reason why36 'the minor37 waits until she is of age, when she performs halizah', since [otherwise]38 he might cohabit with the deaf widow first,39 and the [subsequent] cohabitation with the minor would [thereby] be rendered an unlawful cohabitation.40 If you contend, however, [that the opinion in the statement is that of] R. Nehemiah,41 surely he [it may be objected] ruled that an unlawful cohabitation does exempt!42 Consequently it must be concluded [that the opinion in the statement is that of] the Rabbis. Our point is thus proved.
R. Ashi said: From the first clause43 also it may be inferred that [the opinion expressed] is that of the Rabbis. For it was stated, 'If,44 however, he cohabited with the deaf widow he must give her a letter of divorce and she becomes permitted [to marry any other man]', but it was not stated,45 'If he cohabited with the minor, he must give her a letter of divorce and she becomes permitted'!46 — If this is all, there is not much force in the argument; since in respect of the deaf widow for whom no lawful redress is possible47 mention had to be made of redress obtained through a forbidden act,48 but concerning a minor, for whom lawful redress is possible,49 no redress obtainable through a forbidden act was mentioned.
MISHNAH. IF A MAN WHO WAS MARRIED TO TWO ORPHANS WHO WERE MINORS DIED, AND THE LEVIR COHABITED WITH ONE,50 AND THEN HE ALSO COHABITED WITH THE OTHER,51 OR A BROTHER OF HIS COHABITED WITH THE OTHER,51
Original footnotes renumbered.
- Once the levir married her.
- As the legal wife of her husband.
- And having been the proper wife of the deceased, her marriage with the levir severs the levirate bond with the minor, the subsequent halizah with whom is null and void and in no way affects the validity of her marriage.
- As the legal wife of her husband.
- To the minor, halizah with whom does not concern her at all. Consequently it must be inferred that it is the deaf wife who is partially acquired, and that the doubt as to complete acquisition or none exists in the case of the minor.
- Once the levir married her.
- Given in the case of the deaf woman.
- Cf. supra n. 1 mutatis mutandis.
- To the deaf woman, marriage with whom does not consequently affect the validity of her marriage.
- Of halizah she is incapable, owing to her inability to recite the prescribed formulae; and marriage with her after a marriage had been contracted with the minor is forbidden. Hence the necessity for Rab's ruling which provides redress for the minor as well as the deaf widow.
- That a deaf wife is partially acquired and the legality of the acquisition of a minor is altogether doubtful.
- Orphan is mentioned on account of the minor.
- She is forbidden to live with her husband as the sister of the minor who is now his zekukah (v. Glos.), since she, as a deaf woman, is only partially acquired as wife, while the minor's acquisition by her husband (and consequently her levirate bond with the levir) might possibly have been completely valid.
- And is then free to marry any other man.
- As it is possible that the minor is not acquired at all as a wife, while the levirate bond with the deaf widow is at all events partially valid, the former is forbidden to her husband as the sister of his zekukah. (V. Glos. and cf. supra n. 11).
- She is forbidden to the levir as the sister of his divorcee (it being possible that the minor was completely acquired as his wife), and she is forbidden to any other man since, owing to her inability to recite the required formulae, the levir cannot release her by halizah. Even when the minor dies, and the prohibition of 'divorcee's sister' is lifted, she remains forbidden to the levir as 'brother's wife'. Since at the time she became subject to the levir as his deceased brother's wife she was for some reason unfit to contract the levirate marriage, the prohibition of 'brother's wife' comes again into force.
- After he had divorced the minor.
- Though the cohabitation was forbidden.
- Because (a) if the minor was to be regarded as his legal wife, the deaf woman was all the time permitted to marry a stranger since, as his wife's sister, she was never subject to the levirate obligations; and if (b) the minor was not to be regarded as his legal wife, his marriage with the deaf widow, who accordingly was not his wife's sister, was a valid levirate marriage which was duly and lawfully annulled by the letter of divorce which set her free.
- V. supra p. 773, n. 7.
- Cf. supra p. 773, n. 8.
- Cf. supra n. 3 (a).
- The deaf widow.
- Cf. supra n. 3 (b).
- Since the minor is at least partially his wife and the deaf widow is forbidden to him as his wife's sister.
- From the levirate obligations. Since it is possible that the deaf woman was completely acquired as wife by the deceased brother, the levirate bond between her and the levir is also fully valid, and as the partial acquisition of the minor by her husband (the levir) cannot annul such a possibly fully valid bond, the deaf widow is precluded from marrying either the levir whose partial wife's sister she is (cf. supra n. 9) or from marrying any other man to whom she can be permitted only through halizah with the levir, which she, as a deaf person, is incapable of performing. Had she been permitted to marry the levir, his cohabitation with her would have released her from any further levirate obligation, while his divorce would have set her free to marry any other man. Since, however, cohabitation with the levir is unlawful, she cannot thereby be released from her levirate obligation and should consequently remain forbidden to all men forever!
- Lit., 'this, who?'
- V. supra 50b. Hence the permissibility for the deaf widow to marry again after she had been divorced.
- V. supra p. 774 n. 10.
- After the former had cohabited with the minor.
- The reason is given infra.
- And she is free at all events: If the minor was a lawfully acquired wife the deaf widow is exempt from the levirate marriage by the former's levirate marriage; and if the minor was not a lawfully acquired wife, the deaf widow had performed the levirate obligation by her own cohabitation with the levir through whose divorce she is now free to marry again.
- In respect of the two sisters spoken of in the first clause cited.
- Cf. supra p. 775, n. 3.
- Who maintain that an unlawful cohabitation does not exempt a deceased brother's widow from the levirate marriage and halizah.
- In the final clause, relating to a marriage with orphans who were strangers to each other.
- Though marriage with her by the levir should in any case be permitted. For if she was fully acquired by her husband the subsequent cohabitation by the levir with the deaf widow who was only partially acquired can have no validity to cause the minor's prohibition to him; and if she was not acquired at all she, as a stranger, should also be permitted to the levir; and in either case her divorce should set her free without the performance of halizah.
- If halizah were not imposed upon the minor when she attains her majority.
- And the minor, since it is possible that she was fully acquired, would not be exempt by the levir's cohabitation with the deaf widow who was only partially acquired.
- Since it followed that of the deaf widow who, having been at least partially acquired, is the minor's rival, and two rivals may not be married. As in such a case the minor could not be free before she became of age and performed halizah, a similar restriction has been imposed in the former case also.
- That the minor is partially acquired and that concerning the deaf woman the validity of her acquisition as a wife is in doubt.
- Why then should the minor have to wait until she is of age? If the deaf woman is not acquired at all the minor's cohabitation with the levir is, surely, permitted. But even if the deaf woman is acquired, and her levirate bond causes the minor to be forbidden to the levir, there should be no need for the minor to wait until she is of age and able to perform the halizah, while according to R. Nehemiah, an unlawful cohabitation also exempts a woman from the levirate marriage and halizah!
- Which deals with the marriage of two sisters.
- When the husband of the deaf sister died.
- In the case where the husband of the minor died.
- Which would be the law according to R. Nehemiah, who ruled that an unlawful cohabitation exempts the woman from the levirate obligations. The statement, consequently, must represent the view of the Rabbis, and the reason why the minor cannot be released by a letter of divorce is because cohabitation with her is unlawful since she is the sister of the levir's partially acquired wife; while she herself, in case she was fully acquired, is subject to the levirate bond, from which the marriage with her deaf sister, whose kinyan was only partial, cannot exempt her.
- As she is forbidden to all men including the levir, as shewn supra.
- It being the only possible means whereby she could marry again.
- She has only to wait until she is of age, when she can lawfully perform halizah and thereby obtain her freedom.
- Lit., 'the first'.
- Lit., 'the second'.
HE HAS NOT THEREBY RENDERED THE FIRST INELIGIBLE [FOR HIM];1 AND THE SAME LAW IS APPLICABLE TO TWO DEAF WOMEN.
[IF ONE WAS] A MINOR AND THE OTHER DEAF, AND THE LEVIR COHABITED WITH THE MINOR AND THEN HE ALSO COHABITED WITH THE DEAF WIDOW, OR A BROTHER OF HIS COHABITED WITH THE DEAF WIDOW, HE HAS RENDERED THE MINOR INELIGIBLE [FOR HIM].2 IF THE LEVIR COHABITED WITH THE DEAF WIDOW AND THEN HE ALSO COHABITED WITH THE MINOR, OR A BROTHER OF HIS COHABITED WITH THE MINOR, HE HAS RENDERED THE DEAF WIDOW INELIGIBLE [FOR HIM].3
[IF ONE WAS] OF SOUND SENSES AND THE OTHER DEAF, AND THE LEVIR COHABITED WITH THE FORMER AND THEN HE ALSO COHABITED WITH THE LATTER, OR A BROTHER OF HIS COHABITED WITH THE LATTER, HE DOES NOT RENDER THE FORMER INELIGIBLE [FOR HIM]. IF THE LEVIR COHABITED WITH THE LATTER, AND THEN HE ALSO COHABITED WITH THE FORMER, OR A BROTHER OF HIS COHABITED WITH THE FORMER, HE RENDERS THE LATTER INELIGIBLE [FOR HIM].
[IF ONE WAS] OF AGE AND THE OTHER A MINOR, AND THE LEVIR COHABITED WITH [THE WIDOW] WHO WAS OF AGE, AND THEN HE ALSO COHABITED WITH THE MINOR, OR A BROTHER OF HIS COHABITED WITH THE MINOR, HE DOES NOT RENDER THE ELDER INELIGIBLE FOR HIM. IF THE LEVIR COHABITED WITH THE MINOR, AND THEN HE ALSO COHABITED WITH [THE WIDOW WHO WAS] OF AGE, OR A BROTHER OF HIS COHABITED WITH [THE WIDOW WHO WAS] OF AGE, HE RENDERS THE MINOR INELIGIBLE [FOR HIM].
R. ELEAZAR RULED: THE MINOR IS TO BE INSTRUCTED TO EXERCISE HER RIGHT OF MI'UN AGAINST HIM.4
GEMARA. Rab Judah stated in the name of Samuel: The halachah is in agreement with R. Eliezer.5 So also did R. Eleazar6 state: The halachah is in agreement with R. Eleazar.7 And [both statements8 were] required. For if the statement had been made on the first [Mishnah] only5 [it might have been assumed that] in that case alone did Samuel hold that the halachah is in agreement With R. Eliezer,9 since [the levir there] had not fulfilled the commandment of the levirate marriage,10 but in this case11 where12 the commandment of the levirate marriage has been fulfilled, it might have been assumed that both must be released by a letter of divorce.13 And if the information14 had been given on the latter11 only, [it might have been suggested that] only in this case [is the halachah in agreement with him], because the elder is subject to levirate marriage15 with him, but not16 in the other case.17 [Hence both statements were] required.
MISHNAH. IF A LEVIR WHO WAS A MINOR COHABITED WITH A SISTER-IN-LAW WHO WAS A MINOR, THEY SHOULD BE BROUGHT UP TOGETHER.18 IF HE COHABITED WITH A SISTER-IN-LAW WHO WAS OF AGE, SHE SHOULD BRING HIM UP UNTIL HE IS OF AGE.19
IF A SISTER-IN-LAW DECLARED WITHIN THIRTY DAYS [AFTER HER LEVIRATE MARRIAGE], 'HE HAS NOT COHABITED WITH ME',20 [THE LEVIR] IS COMPELLED TO SUBMIT TO HER HALIZAH,21 BUT [IF HER DECLARATION WAS MADE] AFTER THIRTY DAYS, HE IS ONLY REQUESTED TO SUBMIT TO HER HALIZAH.22 WHEN, HOWEVER, HE ADMITS [HER ASSERTION], HE IS COMPELLED, EVEN AFTER TWELVE MONTHS, TO SUBMIT TO HER HALIZAH.
IF A WOMAN VOWED TO HAVE NO BENEFIT FROM HER BROTHER-IN-LAW, THE LATTER IS COMPELLED TO SUBMIT TO HER HALIZAH, [IF HER VOW WAS MADE] DURING THE LIFETIME OF HER HUSBAND,23 BUT IF AFTER THE DEATH OF HER HUSBAND,24 THE LEVIR MAY ONLY BE REQUESTED25 TO SUBMIT TO HER HALIZAH. IF THIS,26 HOWEVER, WAS IN HER MIND [EVEN IF HER VOW WAS MADE] DURING THE LIFETIME OF HER HUSBAND, THE LEVIR MAY ONLY BE REQUESTED TO SUBMIT TO HER HALIZAH.27
GEMARA. Must it be assumed that our Mishnah28 is not in agreement with R. Meir? For it was taught: A boy minor and a girl minor may neither perform halizah nor contract levirate marriage;29 so R. Meir!30 — It may even be said to agree with R. Meir, for R. Meir spoke only [of the levirate marriage of a sister-in-law] who was of age to a minor, and [of one who was] a minor to [a levir that was] of age, since one of these31 [may possibly be performing] forbidden cohabitation.32 He did not speak, however, of a boy minor who cohabited with a girl minor, in which case both are in the same position.33 But, surely, it was stated, IF HE COHABITED WITH A SISTER-IN-LAW WHO WAS OF AGE SHE SHOULD BRING HIM UP UNTIL HE IS OF AGE!34 — R. Hanina of Hozaah replied: If he had already cohabited [the law] is different.35 But was it not stated: SHE SHOULD BRING HIM UP UNTIL HE IS OF AGE,36 though each act of cohabitation is a forbidden one!37 — The truth is clearly that our Mishnah cannot be in agreement with R. Meir.
Should not the text, To raise up unto his brother a name,38 be applied here? And this minor,39 Surely, is not capable of it!40 — Abaye replied: Scripture said, Her husband's brother shall go in unto her,41 whoever he may be.42 Raba43 replied: Without this [text] also you could not say [that a minor may not contract levirate marriage]. For is there any act [in connection with the levirate marriage] which is at one time44 forbidden and after a time45 permitted? Surely, Rab Judah stated in the name of Rab: Any sister-in-law to whom the instruction, Her husband's brother shall go in unto her,41 cannot be applied at the time when she becomes subject to the levirate marriage, is indeed like the wife of a brother who has children, and is consequently forbidden!46 But then might it not be suggested that this same [principle is applicable here] also?47 — Scripture said, If brethren dwell together,48 even if [one brother is only] one day old.49
IF A SISTER-IN-LAW DECLARED WITHIN THIRTY DAYS etc. Who is it that taught that up to thirty days50 a man may restrain himself?51 — R. Johanan replied: It is R. Meir; for it was taught: A complaint in respect of virginity52 [may be brought] during the first53 thirty days;54 so R. Meir. R. Jose said: If [the woman] was shut up [with him, the complaint must be made] forthwith; if she was not shut up [with him], it may be made even after many years.55 Rabbah stated: It56 may even be said [to represent the opinion of] R. Jose,57 for R. Jose spoke there55 only of one's betrothed with whom one is familiar,58 but [not of] the wife of one's brother
Original footnotes renumbered.
- As the kinyan of both is of equal validity or invalidity, if the levir's kinyan of the first was valid, that of the other, coming as it does after it, is ineffective, while if his kinyan of the first was invalid, that of the other was equally invalid and both have the same status as strangers whom he never married. He may, therefore, retain the first who is in any case permitted to him, while the second must be released, since it is possible that the kinyan of a minor is valid and both were, therefore, the lawful wives of the deceased brother, who, as rivals, cannot both be married by the levir.
- This is a preventive measure against the possibility of marrying the deaf woman first. Cf. Gemara supra 111a — Rashi. Cf. infra p. 779, n. 1. [Mishnayoth edd.: 'he does not render the minor ineligible', the reason being if the minor is fully acquired, the act of cohabitation with the deaf-mute that followed has no validity. Should, on the other hand, the kinyan in regard to a minor be of no effect whatsoever, then she could not be considered the wife of the deceased brother, v. Bertinoro a.l.].
- Since it is possible that the minor is fully acquired, while in the case of the other it is certain that, as a deaf person, she is only partially acquired.
- Thus annulling her marriage and enabling the levir to retain the elder woman.
- With reference to Mishnah 109a which deals with the levirate marriage of two sisters, cf. however supra p. 760, n. 5.
- R. Eleazar b. Pedath, one of the Amoraim.
- R. Eleazar b. Shammua', the Tanna in our Mishnah.
- That (a) the halachah is in agreement with R. Eleazar in our Mishnah and that (b) it is also in agreement with R. Eliezer's view in the Mishnah supra 109a, as stated in the Gemara supra 110a.
- V. supra p. 779, n. 3.
- There only it is permissible to teach the minor to exercise her right of mi'un, in order that the levir may be enabled to perform the commandment with the elder.
- Our Mishnah.
- The levir having cohabited with both widows.
- And that the minor is not to be taught to exercise her right of mi'un.
- That the halachah is in agreement with R. Eleazar.
- V. supra note 2.
- Cf. supra note 5.
- Cf. supra p. 779, n. 3, where, should the minor fail to exercise her right of mi'un, the elder widow would, as his wife's sister, be altogether exempt from the levirate marriage.
- Lit., 'this with this'. As the divorce of a minor is invalid, they cannot be separated by a letter of divorce, should they desire to do so, before both have attained their majority.
- During his minority he cannot divorce her (cf. supra note 10).
- And he denies her statement.
- It being assumed that a period of thirty days sometimes elapses before a marriage is consummated, her word is accepted; v. Gemara.
- He cannot be compelled, because it is assumed that no one postpones consummation of marriage for a longer period than thirty days. His word is, therefore, accepted. As the woman, however, by her statement, declared herself to be still bound to him by the levirate bond it is necessary that she should perform halizah, to submit to which, however, the levir can only be asked, not compelled.
- When she is not likely to have had in her mind the possibility of ever marrying the levir. The vow is, therefore, presumed to have been due to some quarrel or misunderstanding between her and the levir and to be in no way due to a desire on her part to evade the precept of the levirate marriage.
- When her intention may have been to avoid marrying the levir.
- But may not be compelled.
- Avoidance of the levirate marriage.
- And if he refuses, the widow, who is alone to blame for the fact that the levirate marriage cannot be contracted with her, is forbidden to marry again; nor is she entitled to her kethubah.
- Which allows levirate marriage to a minor.
- Since it is possible that on attaining majority they may be found wanting in procreative powers, in consequence of which they will be unfit for the performance of the levirate obligations. As the Pentateuchal law is thus incapable of fulfilment, the sister-in-law remains forbidden to the levir as his brother's wife'.
- Supra 61b. (Cf. supra n. 6).
- I.e., the party that is of age.
- Cf. supra p. 781, n. 7.
- Both are not subject to punishment, even if their cohabitation is found to be a forbidden act and consequently may be allowed in a doubtful case such as this; cf. infra 114a.
- Which is not a case concerning two minors.
- Though the levirate marriage of a minor with one who is of age is forbidden, it is nevertheless valid ex post facto.
- Implying permissibility to continue to live with him.
- Which proves that our Mishnah permits directly, not only ex post facto, the levirate marriage of a minor.
- Deut. XXV, 7.
- As he is incapable of procreation.
- To raise up unto his brother a name. Why then is he allowed, the levirate marriage?
- Deut. XXV. 5.
- Even one who is incapable of fulfilling the commandment in its entirety.
- Others, 'Rabbah' (cf. Tosaf. supra 2a s.v. [H]).
- Lit., 'now', while one of the parties is a minor.
- When majority is attained.
- Supra 30a; for all time, even when the cause of her prohibition had ceased to exist. Were not the minor then permitted the levirate marriage, this prohibition would not have been removed even after he had attained majority.
- I.e., that a levir who was a minor at the time his brother died may never contract levirate marriage.
- Deut. XXV, 5.
- Must the levirate marriage he contracted, cf. ibid.
- After his marriage.
- From cohabitation. This being evidently the reason why in our Mishnah the woman's statement is accepted as true.
- A husband's assertion that he found no tokens of virginity (cf. Deut. XXII, 13ff), and that, consequently, his wife is not entitled to her kethubah.
- Lit., 'all'.
- After marriage; and the husband is believed when he states that he had only just then discovered her defect. If his complaint is made after thirty days, he cannot deprive his wife of her kethubah, it being assumed that her defect, if any, had been discovered by him long ago and that he had acquiesced. His present complaint is regarded as a mere pretext to penalize the woman because of some new quarrel that may have arisen between them.
- V. Tosef. Keth. I.
- The statement in our Mishnah, which implies that for thirty days after marriage a man may restrain himself. (Cf. supra note 5).
- Not only that of R. Meir.
- And since he met her in privacy consummation of marriage might well be assumed.