Babylonian Talmud: Tractate Yebamoth

Folio 3a

[The law, surely,] concerning all the others also was arrived at¹  by exposition!²  — Granted that in respect of [exemption from] the levirate marriage [the law in relation to them] was arrived at by exposition, the principle of prohibition [of sexual intercourse] with them has been explicitly enunciated in Scripture, [while as regards] his daughter³  the very principle underlying the prohibition [of intercourse with her] has been arrived at by exposition; for Raba⁴  stated: R. Isaac b. Abdimi told me, 'Hennah⁵  is derived from hennah⁶  and zimmah⁷  is derived from zimmah'.⁸

Now that it has been stated that preference is given to whatever is arrived at by exposition, the Tanna should have placed⁹  HIS WIFE'S SISTER last!¹⁰  — As he was dealing with a prohibition due to sisterhood¹¹  he mentioned also HIS WIFE'S SISTER. Then let him relegate⁹  the entire passage¹²  to the end!¹³  — But [this is really the explanation]: The Tanna follows the order of the respective degrees of kinship. He, therefore, mentions [first] HIS DAUGHTER, THE DAUGHTER OF HIS DAUGHTER AND THE DAUGHTER OF HIS SON because they are his own next of kin; and since he enumerated three generations of his relatives in descending order he enumerated also three generations of her¹⁴  relatives in descending order. Having enumerated three generations of her¹⁴  relatives in descending order he proceeded to enumerate also three generations of her relatives in ascending order. He then mentions HIS SISTER and HIS MOTHER'S SISTER who are his blood¹⁵  relatives;¹⁶  and while dealing with prohibitions due to brotherhood he also mentions HIS WIFE'S SISTER. And it would indeed have been proper that HIS DAUGHTER-IN-LAW should be placed before THE WIFE OF HIS BROTHER WHO WAS NOT HIS CONTEMPORARY, since it is not on account of kinship¹⁷  that the latter is forbidden, but as he was dealing with a prohibition due to brotherhood he mentioned also THE WIFE OF HIS BROTHER WHO WAS NOT HIS CONTEMPORARY and then mentioned HIS DAUGHTER-IN-LAW.

What argument can be advanced for using¹⁸  the expression EXEMPT¹⁹  and not that of²⁰  'prohibit'?²¹  — If 'prohibit' had been used it might have been assumed that the levirate marriage only was forbidden but that halizah²²  must nevertheless be performed,²³  hence it was taught²⁴  [that halizah also need not be performed]. Let it then be stated,²⁵  'She is forbidden to perform halizah!²⁶  — No harm, surely, is thereby done.²⁷  But why indeed should not [the expression of prohibition be applicable to halizah]? If you were to say that halizah is permissible, [one might say that] levirate marriage is also permitted!²⁸  — As a rival²⁹  is forbidden only where the commandment [of the levirate marriage] is applicable but is permitted where the commandment is not applicable,³⁰  it was therefore necessary to use the expression, EXEMPT.³¹

What justification is there for stating, FROM THE HALIZAH AND FROM THE LEVIRATE MARRIAGE when it would have been sufficient to state³²  FROM THE LEVIRATE MARRIAGE only?³³  — If FROM THE LEVIRATE MARRIAGE only had been stated it might have been assumed that she must perform halizah³⁴  though she is exempt from the levirate marriage, hence it was taught³⁵  that whoever is subject³⁶  to the obligation of levirate marriage is also subject to halizah and whosoever is not subject to the obligation of the levirate marriage is not subject to halizah.

Let it [first] be stated,³⁷  FROM THE LEVIRATE MARRIAGE [and then] FROM THE HALIZAH,³⁸  or else only FROM THE HALIZAH?³⁹  — This Mishnah represents the view of Abba Saul who maintains that the commandment of halizah takes precedence over that of levirate marriage.⁴⁰

What [was intended] to be excluded [by the] numeral at the beginning⁴¹  and what [again was intended] to be excluded [by the] numeral at the end?⁴²

1. In respect to their exemption from the levirate marriage.
2. By deduction from the law of a wife's sister.
3. V. n. 2.
4. Others, 'Rab', who was a disciple of R. Isaac b. Abdimi, v. Tosaf. s.v. [H] a.l.
5. [H] ('they' or 'theirs') in Lev. XVIII, 10 which deals according to Talmudic interpretation with the daughter of his son, or of his daughter that was born from an outraged woman, but not with the daughter herself.
6. Ibid. v. 17 which places a daughter on the same footing as a son's and a daughter's daughter. By this analogy the inference is arrived at that intercourse even with a daughter from an outraged woman is forbidden.
7. [H] ('lewdness' or 'wickedness'), ibid. where the penalty of burning is not mentioned.
8. Ibid. XX, 14 where the penalty of burning with fire is explicitly stated. Thus it is shown that the very foundation of the prohibition of sexual intercourse with a daughter from an outraged woman, as well as the death penalty of burning which the crime involves, are entirely dependent on inferences arrived at by exposition, v. Sanh. 51a.
9. Lit., 'let him teach'.
10. In the list in our Mishnah; since, as will be shewn infra, the exemption from levirate marriage in respect of all the others is derived by exposition from 'his wife's sister'.
11. 'His mother's sister', v. our Mishnah.
12. Which deals with the prohibitions through sisterhood.
13. Of the list.
14. His wife's.
15. Lit., 'his own'.
16. While a daughter-in-law is not consanguineous.
17. A daughter-in-law should, consequently, receive priority.
18. In our Mishnah.
19. Which might imply that the levirate marriage in these cases is not obligatory but optional.
20. v. supra p. 4, n. 13.
21. Since, in fact, no marriage with a deceased brother's widow is permitted whenever the obligation of the levirate marriage does not exist.
22. V. Glos.
23. Since a prohibition could not very well apply to halizah which is a harmless act, the expression of 'prohibit' in respect of halizah would have been interpreted as a 'prohibition to be married to anyone before halizah had been performed'.
24. By the use of the expression, 'exempt'.
25. In our Mishnah.
26. And, consequently, the expression 'prohibit' which is preferable to that of 'exempt' (v. supra notes 6 and 8) could well be used for the levirate marriage.
27. Lit., 'what does he do', i.e., there is no reason why halizah should be forbidden. Hence the expression of 'prohibit' could not properly be used.
28. The expression of 'prohibit' in relation to halizah could, consequently, properly have been used. Why then was 'exempt' preferred to 'prohibit'?
29. Of one's daughter, for instance.
30. If his daughter, e.g., had married one who was not his near of kin, her rival, on the death of her husband, is not forbidden to marry the father; v. infra 13a.
31. 'Prohibit' might have implied that a daughter, e.g., always causes her rival to be prohibited to her father whether the precept of the levirate marriage is applicable or not.
32. Lit., 'let him teach'.
33. It is obvious that if one is exempt from the levirate marriage there could be no question of being subject to halizah which is only the result of a refusal to contract the prescribed marriage.
34. In order that the law of the levirate marriage be not entirely abrogated.
35. By the use of the expression, exempt'.
36. Lit., 'goes up' sc. to the gate, i.e., the court (cf. Deut. XXV, 7.)
37. In our Mishnah.
38. The marriage surely is of greater importance than the halizah, the latter being only an alternative of the former. V. Deut. XXV. 7.
39. The exemption from the marriage being then self-evident.
40. Infra 39b, 109a. And if only FROM THE HALIZAH had been stated, there would be no basis for this inference.
41. Of our Mishnah, 'FIFTEEN'.
42. Of the list; 'ALL THESE', implying the 'FIFTEEN' mentioned. If nothing were to be excluded, there would be no need for the addition of a cardinal at the beginning, or of a reference to it at the end of a list which presumably enumerated all possible cases.

— [They were intended] to exclude the respective rulings of Rab and R. Assi.¹  What, [however, do the numerals] exclude according to Rab and R. Assi? — If they share each other's views, one numeral would serve to exclude the rival of one who made a declaration of refusal,²  and the other to exclude the rival of a wife whom [her husband] remarried after having divorced her.³  If they do not share the views of each other, [each would regard] one [numeral as serving] to exclude the ruling of his colleague;⁴  and the other numeral, as serving to exclude either the rival of one who made a declaration of refusal²  or the rival of a wife whom [her husband] remarried after having divorced her.³

According to Rab and R. Assi these⁵  should have been enumerated in our Mishnah! — [This could not be done] because the law of the rival's rival⁶  is not applicable [to these cases].⁷

Whence is this law⁸  derived?⁹  — [From] what our Rabbis taught: And thou shalt not take a woman to her sister, to be a rival to her, to uncover her nakedness, 'aleha [beside her] in her lifetime,¹⁰  what need was there for the expression ''aleha'?¹¹  Because it was stated, Her husband's brother shall go in 'aleha [unto her],¹²  it might have been imagined¹³  that Scripture¹⁴  speaks even of any of all the forbidden relatives enumerated in the Torah. Hence it was here¹⁰  stated, ''aleha'¹⁵  and elsewhere¹²  it was also stated ''aleha'.¹⁶  Just as elsewhere it is in the case of a precept¹⁷  so here also it is in the case of a precept;¹⁷  and yet did not the All Merciful say, Thou shalt not take.¹⁸  We are thus in a position to know the law concerning herself;¹⁹  whence do we derive the law concerning her rival? — From the Scriptural expression, To be a rival to her.¹⁰  We have so far deduced the law concerning her rival only. Whence do we arrive at the law concerning her rival's rival? — From the fact that Scripture uses the expression li-zeror²⁰  and not that of la-zor.²¹  Thus we have deduced the law concerning a wife's sister, whence is the law concerning the other forbidden relatives to be inferred? — It can be answered: As a wife's sister is singled out in that she is a forbidden relative, the penalty for presumptuous intercourse with her is kareth²²  and for unwitting intercourse a sin-offering, and she is forbidden to the levir, so also any woman who is a forbidden relative, and the penalty for presumptuous intercourse with whom is kareth²²  and for unwitting intercourse a sin-offering, is forbidden to the levir. Now we know the law concerning themselves only;²³  whence is the law con cerning their rivals deduced? — It may be answered: As a wife's sister is singled out in that she is a forbidden relative, kareth is incurred by presumptuous intercourse with her and a sin-offering for unwitting intercourse, and she is forbidden to the levir, and her rival is forbidden, so also in the case of any woman who is a forbidden relative, and for presumptuous intercourse with whom is incurred the penalty of kareth and for unwitting intercourse a sin-offering, and who is forbidden to the levir, her rival is forbidden. Hence have the Sages said: FIFTEEN [CATEGORIES OF] WOMEN EXEMPT THEIR RIVALS AND THEIR RIVALS' RIVALS, AND SO ON, AD INFINITUM, FROM THE HALIZAH AND FROM THE LEVIRATE MARRIAGE. One might assume that the six more rigidly forbidden relatives²⁴  are also included in the ruling,²⁵  so that their rivals also²⁶  are forbidden,²⁷  hence it must be stated:²⁸  As a wife's sister is singled out in that she is a forbidden relative, kareth is incurred for presumptuous intercourse with her and a sin-offering for unwitting intercourse, she may be married to the other brothers, but is forbidden to the levir, and her rival is forbidden, so also in the case of any woman who is a forbidden relative, for presumptuous intercourse with whom is incurred the penalty of kareth and for unwitting intercourse a sin-offering, who may marry one of the other brothers, but is forbidden to the levir, her rival also is forbidden; excluded, however, are the six more rigidly forbidden relatives. Since they may not be married to the other brothers, their rivals are permitted; for [the law of] 'rival'²⁹  is applicable only [to widows] of a brother.³⁰

Thus we have deduced the prohibition. Whence, however, is the penalty inferred? — Scripture said, For whosoever shall do any of these abominations etc. [shall be cut off from among their people.]³¹

The reason,³²  then, is because the All Merciful has written, ''aleha',³³  otherwise it would have been said that levirate marriage may be contracted with the wife's sister; what is the reason? Is it because we assume that a positive precept,³⁴  supersedes a negative precept?³⁵  Surely, it is possible that³⁶  the rule that a positive precept supersedes a negative precept applies only where the latter is a mere prohibition; does it, however, supersede a prohibition involving the penalty of kareth?³⁵  Furthermore, whence is it derived that it may supersede even a mere prohibition?

1. Infra 11a and 12a.
2. A minor who was one of the wives of a deceased childless brother, on declaring her refusal to marry the levir, exempts thereby her rivals from the levirate marriage but not from halizah.
3. If one of the widows of a deceased brother was divorced once, and then remarried to him after she had married another man, she causes the exemption of her rivals from the levirate marriage, v. infra 11b. The halizah, however, must be performed.
4. According to Rab that of R. Assi, and vice versa.
5. The subjects of their respective rulings, i.e., the sotah (v. Glos.) and the barren wife, who, they maintain, infra 11a, 11b, exempt their rivals both from the levirate marriage and from halizah.
6. V. our Mishnah.
7. Since neither a sotah nor a barren woman may marry any one of the brothers.
8. Of our Mishnah, that forbidden relatives as well as their rivals and rivals' rivals, ad infinitum, are exempt from the levirate marriage and from halizah.
9. Lit., 'whence these words'.
10. Lev. XVIII, 18.
11. Which does not add any point to the law enunciated.
12. Deut. XXV, 5.
13. Lit., 'I hear'.
14. Since it drew no distinction between a brother's wife who was a forbidden relative and one that was not forbidden.
15. I.e., 'beside her'.
16. I.e., 'unto her'. In both cases the respective terms 'beside her' and 'unto her' are expressed by the same Heb. word [H].
17. That of levirate marriage.
18. Two sisters, Lev. XVIII, 18. The verse in Lev. thus means that the prohibition of marrying the wife's sister is in force even where she is his dead brother's widow, in regard to whom the precept, 'her husband's brother shall go in unto her', might apply.
19. Lit., 'there is not to me but she', sc. the forbidden relative herself.
20. [H] 'to be a rival',
21. [H] 'to oppress', the longer form li-zeror implies many rivals, i.e., rivals of the rivals. The last question and answer are deleted by R. Tam and Nahmanides. Cf. [H]
22. V. Glos.
23. The forbidden relatives.
24. Enumerated infra 13a.
25. Relating to the other forbidden relatives.
26. If they and their rivals were married to a stranger.
27. To marry the man whom the forbidden relatives themselves are not allowed to marry.
28. Lit., 'say'.
29. I.e., the rival's exemption from the levirate marriage and halizah.
30. Where one of the widows is a forbidden relative of one of the surviving brothers and no forbidden relative of the deceased. As the relative is forbidden to marry the brother, her rival also is forbidden to him as 'his brother's wife'. Where the relative, however, is married to a stranger, her rival is permitted to those to whom the relative herself is forbidden.
31. Lev. XVIII, 29.
32. Why a wife's sister is forbidden the levirate marriage.
33. V. the texts from Lev. and Deut. and the analogy supra.
34. The commandment of the levirate marriage.
35. The prohibition to marry one's wife's sister.
36. Lit., 'say'.