Babylonian Talmud: Tractate Yebamoth

Folio 112a

towards whom one is rather reserved.¹

Now, instead of being compelled to submit to halizah, let [the levir] be compelled to take [his sister-in-law] in levirate marriage! — Rab replied: [This is a case] where her letter of divorce was produced by her.²

An objection was raised: If within thirty days³  a sister-in-law declared, 'He has not cohabited with me,' he is compelled to submit to halizah from her, whether he says 'I have cohabited' or whether he admits 'I have not cohabited'; if after thirty days, he may only be requested⁴  to submit to halizah from her. If she declares,⁵  'He cohabited with me,' and he states, 'I did not cohabit', behold, he may⁶  release her by a letter of divorce.⁷  If he declares, 'I have cohabited' and she states, 'He has not cohabited with me,' It is necessary for him, even if he withdrew his statement and admitted, 'I have not cohabited', [to give her] a letter of divorce⁸  and [to submit to her] halizah!⁹  — R. Ammi replied: [The meaning is that] she requires halizah together with her letter of divorce.¹⁰

R. Ashi replied: There¹¹  the letter of divorce [was given] in respect of his levirate bond;¹²  while here¹³  the letter of divorce [is required in respect] of his cohabitation.¹⁴

[A couple] both of whom admitted¹⁵  [that there was no consummation of the levirate marriage] once came before Raba. 'Arrange the halizah for her', said Raba to his disciples, 'and dismiss her case'. 'But, surely', said R. Sherebya to Raba, 'it was taught: She requires¹⁵  both a letter of divorce and halizah!' 'If it was so taught', the other replied, 'well, then it was taught'.

Hon son of R. Nahman enquired of R. Nahman: What [is the law in respect of] her¹⁶  rival?¹⁷  — The other replied: Shall the rival be forbidden [to marry again] because we compel or request [the levir]!¹⁸

IF A WOMAN VOWED TO HAVE NO BENEFIT etc. We learned elsewhere: At first it was held that [the following] three [classes of] women must be divorced¹⁹  and they also receive their kethubah: One²⁰  who declares, 'I am unclean for you',²¹  or 'heaven is between me and you',²²  or 'May I be kept away from the Jews'.²³  This ruling was afterwards withdrawn²⁴  in order that a wife might not cast eyes upon another man²⁵  and thus disgrace her husband;²⁶  but [instead it was ordained that] one²⁰  who declared, 'I am unclean for you'²¹  must bring evidence in support of her statement;²⁷  [in respect of a woman who tells her husband] 'heaven is between me and you',²²  [peace] is made between them by way of a request [addressed to the husband]; [and if a woman vowed], 'May I be kept away from the Jews' [the husband] invalidates his part [of the vow]²⁸  and she may continue connubial intercourse with him, though she remains removed from [other] Jews.²⁹  The question was raised: What [is her relation] to the levir [if a woman had vowed],³⁰  'May I be kept from the Jews?' Is [it assumed that]³¹  it occurred to her that her husband may possibly die³²  and that she might become subject to the levir³³  or not?³⁴  — Rab replied: The levir has not the same status as the husband;³⁵  and Samuel replied: The levir has the same status as the husband.

Said Abaye: Logical deduction is in agreement with Rab. For we learned, 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. Now, if it is [to be assumed] that it occurred to her'³⁶

1. Though he was alone with her no cohabitation may have taken place. [H] 'to be shy', 'bashful'. Cf. [H].
2. Lit., 'from under her hand'. After a divorce by the levir, the levirate marriage is forbidden. It is now assumed that the letter of divorce spoken of is one by which the levir had severed their union after the consummation of their marriage.
3. After contracting levirate marriage.
4. He cannot be compelled.
5. After thirty days from their marriage.
6. If they desire their union to be severed.
7. No halizah is necessary, the woman being believed, since more than thirty days have elapsed after their marriage.
8. Since after thirty days it is assumed that cohabitation had taken place.
9. Because she herself by her declaration that no cohabitation had taken place and that the levirate bond was consequently still in force has caused her own prohibition to all other men until she has performed the halizah. Now, as in this case it is specifically mentioned that a letter of divorce is required, it is to be presumed that in all cases spoken of in this Baraitha the woman had no divorce; why then in the absence of a divorce, is the levir in the first case, compelled to submit to halizah and not rather to the performance of the levirate marriage?
10. Which is already in her possession. The clause 'even if he withdrew' his statement etc,' does not emphasize the necessity of giving a letter of divorce but the ruling that where the levir first declared after thirty days that he consummated the marriage he may only be requested and not compelled to submit to halizah even though he later asserted that no cohabitation had taken place.
11. In the first clause of the Baraitha under discussion.
12. And this has caused the woman to be forbidden to the levir, in consequence of which halizah only but no levirate marriage is possible.
13. In the final clause.
14. The purport of the clause 'even if he withdrew' his statement etc.' being that although the levir admitted later that no cohabitation had taken place, in consequence of which it might have been presumed that halizah alone is sufficient, a letter of divorce is nevertheless required, because, more than thirty days having elapsed after the marriage, his first statement admitting cohabitation is accepted as the true one.
15. After the levir had first declared that consummation of marriage had taken place.
16. A sister-in-law who declared that the levirate marriage had not been consummated.
17. Is the rival also forbidden to marry again before the other had performed the halizah?
18. Obviously not. The sister-in-law in question may indeed have placed herself under a prohibition as a result of her own declaration. The rival, however, since every levirate marriage is usually consummated, remains free.
19. Even if the husband is reluctant.
20. The wife of a priest.
21. Through outrage. A priest is forbidden to live with a wife in such circumstances.
22. A declaration that may be made by a woman whom her husband deprives of her connubial rights. The meaning might be: 'The distance of the heavens lies between us' or 'heaven knows (if no man does) our miserable relationship'.
23. I.e., a vow to have no sexual intercourse with any of them. Such a vow is assumed to be the result of the pain that connubial intercourse may cause her, and therefore justified.
24. Lit., 'they returned to say'.
25. Whom she would arrange to marry in a place where they are unknown.
26. By inventing the disabilities mentioned.
27. Otherwise her assertion is disregarded.
28. That part of the prohibition that concerns himself.
29. For fuller notes v. Ned., Sonc, ed., pp. 279ff.
30. During the lifetime of her husband.
31. Though her husband is alive.
32. Without issue.
33. Her vow was consequently meant to include the levir; and, since her husband can only invalidate his own share, she remains forbidden to the levir.
34. Her vow may have applied to those men only who are otherwise allowed to marry her if her husband divorced her, her object being to convince him that she had no intention of marrying any other man even after she had left him. As the levir remains in any case forbidden to her after her husband had divorced her she could not have had him in mind. Hence he should be permitted to contract levirate marriage with her.
35. He is excluded from the vow.
36. Even while her husband was alive, that he might die without issue and that she would, therefore, be subject to the levir.

it should have been [stated that he is only] to be requested!¹  — What we are dealing with here is the case of a woman who has children, so that such a remote possibility²  does not occur to her.

What, however, [would be the law if] she had no children? [Would the levir in that case have] to be requested! Instead, then, of stating, IF THIS, 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,³  a distinction should have been made in the very same case:⁴  This⁵  is applicable only where she has children, but where she has no children he may only be requested!' Consequently⁶  it must be inferred that whether⁷  she has children or not, the levir is compelled [to submit to halizah], in accordance with the opinion of Rab. Thus our contention is proved.

CHAPTER XIV

MISHNAH. A DEAF⁸  MAN WHO MARRIED A WOMAN OF SOUND SENSES OR A MAN OF SOUND SENSES WHO MARRIED A DEAF WOMAN MAY, IF HE WISHES TO RELEASE HER, DO SO;⁹  AND IF HE WISHES TO RETAIN HER HE MAY ALSO DO SO. AS HE MARRIES [THE WOMAN] BY GESTURES¹⁰  SO HE DIVORCES HER BY GESTURES.

IF A MAN OF SOUND SENSES MARRIED A WOMAN OF SOUND SENSES AND SHE BECAME DEAF, HE MAY,¹¹  IF HE WISHES, RELEASE HER;¹²  AND IF HE WISHES HE MAY RETAIN HER. IF SHE BECAME AN IMBECILE HE MAY NOT DIVORCE HER.¹³  IF HE, HOWEVER, BECAME DEAF OR INSANE, HE MAY NEVER DIVORCE HER.¹⁴

R. JOHANAN B. NURI ASKED: WHY MAY A WOMAN WHO BECAME DEAF BE DIVORCED WHILE A MAN WHO BECAME DEAF MAY NOT DIVORCE [HIS WIFE]? THEY¹⁵  ANSWERED HIM: A MAN WHO GIVES DIVORCE IS NOT LIKE A WOMAN WHO IS DIVORCED. FOR WHILE A WOMAN MAY BE DIVORCED WITH HER CONSENT AS WELL AS WITHOUT IT, A MAN CAN GIVE DIVORCE ONLY WITH HIS FULL CONSENT.

R. JOHANAN B. GUDGADA TESTIFIED CONCERNING A DEAF [MINOR] WHO WAS GIVEN IN MARRIAGE BY HER FATHER¹⁶  THAT SHE MAY BE RELEASED BY A LETTER OF DIVORCE.¹⁷  THEY¹⁸  SAID TO HIM:¹⁹  THE OTHER²⁰  ALSO IS IN A SIMILAR POSITION.²¹

IF TWO DEAF BROTHERS WERE MARRIED TO TWO DEAF SISTERS, OR TO TWO SISTERS WHO WERE OF SOUND SENSES, OR TO TWO SISTERS ONE OF WHOM WAS DEAF AND THE OTHER WAS OF SOUND SENSES; AND SO ALSO IF TWO DEAF SISTERS WERE MARRIED TO TWO BROTHERS WHO WERE OF SOUND SENSES, OR TO TWO DEAF BROTHERS, OR TO TWO BROTHERS ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, BEHOLD THESE [WOMEN] ARE EXEMPT FROM HALIZAH AND FROM LEVIRATE MARRIAGE.²²  IF [THE WOMEN, HOWEVER], WERE STRANGERS²³  [THE RESPECTIVE LEVIRS] MUST MARRY THEM,²⁴  AND IF THEY WISH TO DIVORCE THEM,²⁵  THEY MAY DO SO.²⁶

IF TWO BROTHERS, ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, WERE MARRIED TO TWO SISTERS WHO WERE OF SOUND SENSES, AND THE DEAF BROTHER, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE SISTER OF SOUND SENSES, DO? [NOTHING; SINCE HIS SISTER-IN-LAW] IS EXEMPT,²⁷  AS BEING HIS WIFE'S SISTER. IF THE BROTHER OF SOUND SENSES, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DIED, WHAT SHOULD THE DEAF BROTHER, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DO? HE MUST RELEASE HIS WIFE BY A LETTER OF DIVORCE²⁸  WHILE HIS BROTHER'S WIFE IS FORBIDDEN FOREVER [TO MARRY AGAIN].²⁹

IF TWO BROTHERS OF SOUND SENSES WERE MARRIED TO TWO SISTERS ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, AND THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE DEAF SISTER, DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DO? [NOTHING; SINCE HIS SISTER-IN-LAW] IS EXEMPT³⁰  AS HIS WIFE'S SISTER. IF THE BROTHER OF SOUND SENSES, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE DEAF SISTER, DO? HE MUST DIVORCE HIS WIFE BY A LETTER OF DIVORCE³¹  AND [HE RELEASES] HIS BROTHER'S WIFE BY HALIZAH.³²

IF TWO BROTHERS, ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, WERE MARRIED TO TWO SISTERS, ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, AND THE DEAF BROTHER, THE HUSBAND OF THE DEAF SISTER, DIED, WHAT SHOULD [THE BROTHER WHO WAS] OF SOUND SENSES, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DO? [NOTHING; SINCE THE WIDOW] IS RELEASED BY VIRTUE OF HER BEING HIS WIFE'S SISTER. IF THE BROTHER OF SOUND SENSES, THE HUSBAND OF [THE SISTER WHO WAS] OF SOUND SENSES, DIED, WHAT SHOULD THE DEAF BROTHER, THE HUSBAND OF THE DEAF SISTER, DO? HE RELEASES HIS WIFE BY A LETTER OF DIVORCE. WHILE HIS BROTHER'S WIFE IS FOREVER FORBIDDEN [TO MARRY AGAIN].³³

IF TWO BROTHERS, ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, WERE MARRIED TO TWO STRANGERS WHO WERE OF SOUND SENSES, AND THE DEAF BROTHER, THE HUSBAND OF [THE WOMAN WHO WAS] OF SOUND SENSES DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE WOMAN OF SOUND SENSES, DO? — HE EITHER SUBMITS TO HALIZAH OR CONTRACTS LEVIRATE MARRIAGE. IF THE BROTHER OF SOUND SENSES, THE HUSBAND OF [THE WOMAN WHO WAS] OF SOUND SENSES, DIED, WHAT SHOULD THE DEAF BROTHER, THE HUSBAND OF THE WOMAN WHO WAS OF SOUND SENSES, DO? HE MUST MARRY HER AND HE MAY NEVER DIVORCE HER.³⁴

IF TWO BROTHERS OF SOUND SENSES WERE MARRIED TO TWO STRANGERS,³⁵  ONE OF WHOM WAS OF SOUND SENSES AND THE OTHER DEAF, AND THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE DEAF WOMAN DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE WOMAN OF SOUND SENSES, DO? HE MARRIES [THE WIDOW] AND IF HE WISHES TO DIVORCE HER HE MAY DO SO. IF THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE WOMAN OF SOUND SENSES, DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE DEAF WOMAN, DO? HE MAY EITHER SUBMIT TO HALIZAH OR CONTRACT LEVIRATE MARRIAGE.

IF TWO BROTHERS, ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, WERE MARRIED TO TWO STRANGERS,³⁵  ONE OF WHOM WAS DEAF AND THE OTHER OF SOUND SENSES, AND THE DEAF BROTHER, THE HUSBAND OF THE DEAF WOMAN, DIED, WHAT SHOULD THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE WOMAN OF SOUND SENSES. DO? HE MUST MARRY [THE WIDOW], BUT IF HE WISHES TO DIVORCE HER HE MAY DO SO.³⁶  IF THE BROTHER OF SOUND SENSES, THE HUSBAND OF THE WOMAN OF SOUND SENSES, DIED, WHAT SHOULD THE DEAF BROTHER, THE HUSBAND OF THE DEAF WOMAN, DO? HE MUST MARRY [THE WIDOW] AND HE MAY NEVER DIVORCE HER.

GEMARA. Rami b. Hama stated: Wherein lies the difference between a deaf man or a deaf woman [and an imbecile] that the marriage of the former should have been legalized by the Rabbis³⁷  while that of the male imbecile or female imbecile was not legalized by the Rabbis? For it was taught: If an imbecile or a minor married, and then died, their wives are exempt from halizah and from the levirate marriage!³⁸  — [In the case of] a deaf man or a deaf woman, where the Rabbinical ordinance could be carried into practice,³⁹  the marriage was legalized by the Rabbis; [in that of] a male, or female imbecile, where the Rabbinical ordinance cannot be carried into practice, since no one could live with a serpent in the same basket,⁴⁰  the marriage was not legalized by the Rabbis.

And wherein lies the difference between a minor [and a deaf person] that the marriage of the former should not have been legalized⁴¹  by the Rabbis while that of the deaf person was legalized by the Rabbis? — The Rabbis have legalized the marriage of a deaf person since [Pentateuchally] he would never be able to contract a marriage;⁴²  they did not legalize the marriage of a minor since in due course he would be able to contract [a Pentateuchally valid] marriage. But, surely, [in the case of] a girl minor, who would in due course be able to contract [a Pentateuchally valid] marriage, the Rabbis did legalize her marriage.⁴³  — There⁴⁴  [it was legalized] in order that people might not treat her as ownerless property.⁴⁵

And why is there a difference⁴⁶  between a minor [and a deaf woman] that the former should be permitted to exercise the right of mi'un while the deaf woman should not be permitted to exercise the right of mi'un? — Because, if [the latter also were allowed to do] so,

1. And not compelled; since it is the woman's fault that the levirate marriage cannot be contracted.
2. Lit., 'that all this', i.e., that all her children as well as her husband would die, and that the death of the former would precede that of the latter.
3. Which, referring to a case where the woman's intention was known, is altogether different from the previous one.
4. Spoken of, where it is not definitely known whether the levirate marriage was or was not in her mind.
5. That the levir is compelled to submit to halizah.
6. Since no such distinction was drawn.
7. Lit., 'there is no difference'.
8. 'Deaf and dumb', as is to be understood throughout by the term 'deaf'. Marriages contracted by parties of whom one is a deaf-mute are only Rabbinically valid.
9. By a letter of divorce.
10. Which in the case of a deaf person take the place of the prescribed formulae.
11. Though her marriage was Pentateuchally valid.
12. By a letter of divorce, for the reason to be explained infra.
13. This is a Rabbinic provision, and the reason is given in the Gemara.
14. Because his marriage was Pentateuchally valid while his divorce, being that of a deaf person, has no such validity.
15. The Sages.
16. Such a marriage is Pentateuchally valid since her father is empowered to act on her behalf.
17. Even after attaining her majority when she is no longer under her father's control.
18. The Sages.
19. R. Johanan b. Nuri.
20. Lit., 'this', one of sound senses that became deaf, who formed the subject of R. Johanan b. Nuri's enquiry in the preceding paragraph.
21. V. Git. 55a.
22. As the marriages of both sisters are of equal invalidity in Pentateuchal, and of equal validity in Rabbinic law, their levirate obligations and degree of relationship are also on the same legal level. Each sister, therefore, exempts the other, as in the case of marriages between normal brothers and sisters, from both the levirate marriage and halizah.
23. To one another; i.e., if they were not sisters or near of kin in any other way.
24. Since no halizah is possible with a deaf-mute (v. supra p. 788, n. 1) who cannot recite the formulae.
25. After marriage.
26. By gestures, as they did in the case of the marriages.
27. From levirate marriage and halizah.
28. Because the levirate bond with his sister-in-law, whose marriage (as one between normal persons) was Pentateuchally valid, causes his wife whose marriage with him (a deaf person) was only Rabbinically valid, to be forbidden to him as the sister of his zekukah (v. Glos.).
29. Since, as a deaf man (cf. supra p. 789. n. 8), he is incapable of participating in her halizah, while levirate marriage cannot be contracted because she is his wife's, or divorcee's sister.
30. From levirate marriage and halizah.
31. Cf. supra n. 1 mutatis mutandis.
32. Since both he and his sister-in-law are normal persons.
33. V. supra p. 790, n. 2.
34. His divorce, which has only Rabbinical, but not Pentateuchal validity, cannot sever the levirate bond between him and his sister-in-law, which arose out of the pentateuchally valid marriage of his brother.
35. Cf. supra p. 789. n. 10.
36. Cf. supra p. 789. n. 10.
37. As is evident from our Mishnah. Since halizah was required it is obvious that the preceding marriage, without which the question of halizah could never have arisen, is recognized as valid despite the fact that a deaf-mute (cf. supra p. 788. n. 1), owing to his inferior intelligence, is elsewhere ineligible to effect a kinyan.
38. Supra 69b, 96b.
39. Deaf-mutes might well lead a happy matrimonial life, not only when the husband or wife is deaf, but even where both are afflicted with deafness.
40. proverb. There can be no happy or enduring matrimonial union between an imbecile and a sane person or between two imbeciles.
41. As has been stated in the Baraitha just cited.
42. And were not his marriage recognized as valid, at least in Rabbinic law, marriage for him would have become an impossibility.
43. Wherein does she differ from the boy minor that she should be subject to a different law?
44. The case of the girl minor.
45. Take liberties with her.
46. Since in the case of either, marriage is Pentateuchally invalid.