Babylonian Talmud: Tractate Yebamoth

Folio 35a

the Rabbis having made the provision¹  in the case of a minor²  as a precaution against one who is of age.³  But is provision made in the case of a minor as a precaution against one who is of age? Surely we learnt, IF THEY WERE MINORS INCAPABLE OF BEARING CHILDREN THEY MAY BE RESTORED AT ONCE! — R. Giddal replied: This⁴  was a special ruling.⁵  Does this imply that such a case had actually occurred!⁶  — Rather [this is the meaning:] It⁴  was like a special ruling, since the exchange of brides is an unusual occurrence.⁷

[Others adopt] a different reading: Samuel said: All these women,⁸  with the exception of a proselyte and an emancipated slave who were of age, must wait three months.⁹  An Israelitish minor, however, need not wait three months. But how [was she separated]? If by a declaration of refusal,¹⁰  Surely Samuel has already stated this¹¹  one! And if by a letter of divorce, Samuel surely stated that she¹²  must wait!¹³  For Samuel said: If she exercise her right of refusal against him, she need not wait three months; if he gave her a letter of divorce she must wait three months! [It was] rather in respect of harlotry, and harlotry with a minor⁹  an unusual occurrence.⁸

Let, however, a preventive measure¹⁴  be made in respect of a proselyte and an emancipated slave with whom harlotry is not unusual! — He holds the same view as R. Jose. For it was taught: Proselytes,¹⁵  captives¹⁵  or slaves¹⁵  who were redeemed, or embraced the Jewish faith or were emancipated, must wait three months; so R. Judah. R. Jose permits immediate betrothal and marriage.¹⁶  Rabbah said: What is R. Jose's reason? He is of the opinion that a woman who plays the harlot makes use of an absorbent in order to prevent conception.¹⁶

Said Abaye to him: This¹⁷  is intelligible in the case of a proselyte; as her intention is to embrace the Jewish faith she is careful¹⁸  in order to know the distinction between the seed that was sown in holiness and the seed that was sown in unholiness. It¹⁷  is also [intelligible In the case of] a captive and a slave; since on hearing from their masters¹⁹  they exercise care.²⁰  How is this¹⁷  to be applied. however, in the case of one who is liberated through the loss of a tooth or an eye?²¹  And were you to suggest that wherever something unexpected happens²²  R. Jose admits,²³  surely it was taught:²⁴  A woman who had been outraged or seduced must wait three months; so R. Judah. R. Jose permits immediate betrothal and marriage!²⁵  — Rather, said Abaye,²⁶  a woman playing the harlot turns over In order to prevent conception.²⁷  And the other?²⁸  -There is the apprehension that she might not have turned over properly.²⁹

IF THEY WERE PRIESTLY WOMEN etc. Only³⁰  priestly women but not an Israelitish woman?³¹  -Read, 'If they were the wives of priests'.³²  Only' 'priests' wives,'³³  but not Israelites' wives?³⁴  Surely R. Amram said, 'The following statement was made to us by R. Shesheth who threw light on the subject³⁵  from our Mishnah:³⁶  An Israelite's wife³⁷  who was outraged, though she is permitted to her husband, is disqualified from the priesthood.³⁸  — Raba replied: It is this that was meant:³⁹  IF THEY WERE PRIESTLY WOMEN⁴⁰  married to Israelites THEY ARE DISQUALIFIED from eating terumah at their parents' home.⁴¹

1. That three months must be allowed to pass.
2. Though she is not capable of conception.
3. A proselyte and an emancipated slave who were minors are, however, exempt. because, being cases of rare occurrence, no preventive measure is required.
4. The ordinance in our Mishnah.
5. [H] lit., 'a ruling of the hour'.
6. But our Mishnah, 'IF THEY WERE MINORS etc. Obviously speaks of a contingency and not of a fact.
7. And no preventive measure is. therefore, necessary.
8. Enumerated infra 41a, 42b.
9. Before they are allowed to marry again.
10. Mi'un, v. Glos.
11. That in such circumstances she need not wait three months.
12. A minor.
13. Three months.
14. To avoid conception and the mingling of legitimate with illegitimate children.
15. In the original the noun is in the sing.
16. Keth. 372.
17. Rabbah's explanation.
18. Cf. supra note 1; and has always some absorbent in readiness.
19. Of their impending liberation.
20. Cf. supra notes 1 and 5.
21. V. Ex. XXI, 26, where the liberation of the slave comes suddenly. and no previous care would have been exercised by her.
22. Lit., 'of itself', when the woman was not likely to have been prepared with an absorbent.
23. That a waiting period of three months must be allowed.
24. Cur. edd., 'we learned'.
25. Which shews that even when the unexpected happens R. Jose requires no waiting period!
26. The reading in Keth. 372 is 'Rabbah'. Others, 'Raba' (v. Alfasi).
27. Keth. loc. cit. No absorbent is needed. Similarly in the case of a liberated captive or slave. Hence no waiting period is required.
28. Why then does he require a waiting period?
29. And conception might have taken place. V. Keth. loc. cit.
30. Lit., 'yes'.
31. The wife of a priest. Surely she also is forbidden to her husband!
32. V. previous note.
33. Are forbidden to marry priests.
34. Who were priests' daughters.
35. Lit., 'and lit up our eyes'.
36. I.e., the Mishnah infra 53b which was under discussion.
37. A priest's daughter who on the death of her husband returns to her father's house and is permitted again to eat terumah. V. Lev. XXII, 12-13.
38. Infra 56af. She may not marry a priest even after the death of her husband.
39. By our Mishnah.
40. I.e., daughters of priests.
41. PRIESTHOOD in our Mishnah referring to the right of eating terumah on their return to their parents' home in their widowhood (v. Lev. XXII, 13). V. supra n. 8, and the reading of cur. edd. supra p. 211, n. 8.

CHAPTER IV

MISHNAH. IF A LEVIR PARTICIPATED IN HALIZAH WITH HIS DECEASED BROTHER'S WIFE¹  WHO WAS SUBSEQUENTLY FOUND TO BE PREGNANT, AND SHE GAVE BIRTH, HE IS, WHEREVER THE CHILD IS VIABLE,²  PERMITTED TO MARRY HER RELATIVES AND SHE IS PERMITTED TO MARRY HIS RELATIVES,³  AND HE DOES NOT RENDER HER UNFIT FOR THE PRIESTHOOD;⁴  BUT WHEREVER THE CHILD IS NOT VIABLE,⁵  THE LEVIR IS FORBIDDEN TO MARRY HER RELATIVES AND SHE IS FORBIDDEN TO MARRY HIS RELATIVES, AND HE RENDERS HER UNFIT TO MARRY A PRIEST.

IF A LEVIR MARRIED HIS DECEASED BROTHER'S WIFE¹  WHO IS FOUND TO HAVE BEEN PREGNANT,⁶  AND SHE GAVE BIRTH, HE, WHEREVER THE CHILD IS VIABLE, MUST⁷  DIVORCE HER. AND BOTH ARE UNDER THE OBLIGATION OF BRINGING AN OFFERING;⁸  BUT IF THE CHILD IS NOT VIABLE, HE MAY RETAIN HER. IF IT IS DOUBTFUL WHETHER IT IS A NINE-MONTHS CHILD OF THE FIRST [HUSBAND] OR A SEVEN-MONTHS CHILD OF THE SECOND [HUSBAND]. SHE MUST BE DIVORCED, AND THE CHILD IS LEGITIMATE,⁹  BUT THEY ARE UNDER THE OBLIGATION OF AN ASHAM TALUI.¹⁰

GEMARA. It was stated: In the case of a levir who participated In halizah with a pregnant woman who subsequently miscarried, R. Johanan said, She need not perform the halizah with the brothers; and Resh Lakish said: She must perform halizah with the brothers. 'R. Johanan said, She need not perform halizah with the brothers', because the halizah of a pregnant woman¹¹  is deemed to be proper halizah and marital contact with a pregnant woman is deemed to be proper marriage.¹²  'Resh Lakish said: She must perform halizah with the brothers', because the halizah with a pregnant woman is not deemed to be a proper halizah, nor is marital contact with a pregnant woman deemed to be a proper marriage. On what principle do they¹³  differ? — If you wish I might say: In the interpretation of a Scriptural text. And if you prefer I might say: On a logical point. 'If you wish I might say: In the interpretation of a Scriptural text';¹⁴  R. Johanan is of the opinion that the All Merciful said, And have no child,¹⁵  and this man¹⁶  surely has none; while Resh Lakish is of the opinion that And have no [en lo] child¹⁷  implies. 'Hold an inquiry¹⁸  concerning him'.¹⁹  'And If you prefer I might say: On a logical point'; R. Johanan argues: Had Elijah²⁰  appeared and announced that the woman would miscarry. would she not have been subject to halizah or levirate marriage?²¹  Now also²²  the fact is established retrospectively. And Resh Lakish maintains that a fact cannot be said to have been established retrospectively.

R. Johanan raised an objection against Resh Lakish: WHEREVER THE CHILD IS NOT VIABLE THE LEVIR IS FORBIDDEN TO MARRY HER RELATIVES AND SHE IS FORBIDDEN TO MARRY HIS RELATIVES, AND HE RENDERS HER UNFIT TO MARRY A PRIEST. This is quite correct according to my view: Since I maintain that the halizah of a pregnant woman is a proper halizah he, consequently, renders her unfit. According to you, however, who maintain that the halizah of a pregnant woman is not proper halizah, why does he render her unfit to marry a priest? — The other answered him: It²³  is only Rabbinical and it is a mere restriction.²⁴

Others say: Resh Lakish raised an objection against R. Johanan: WHEREVER THE CHILD IS NOT VIABLE THE LEVIR IS FORBIDDEN TO MARRY HER RELATIVES AND SHE IS FORBIDDEN TO MARRY HIS RELATIVES, AND HE RENDERS HER UNFIT TO MARRY A PRIEST. This is quite correct according to my view; since I maintain that the halizah of a pregnant woman is not a proper halizah it was justly stated as a restriction,²⁵  that HE RENDERS HER UNFIT TO MARRY A PRIEST but not that 'she requires no halizah from the brothers';²⁶  according to you, however,²⁷  it should have been stated that 'she requires no halizah from the brothers'!²⁸  — The other replied: It should have been indeed;²⁹  only because in the first clause it was stated, HE DOES NOT RENDER HER UNFIT³⁰  it was also³¹  stated in the latter clause, HE RENDERS HER UNFIT.³²

R. Johanan raised an objection against Resh Lakish: IF THE CHILD IS NOT VIABLE, HE MAY RETAIN HER. This is quite correct according to my view; since I maintain that the halizah of a pregnant woman is a proper halizah and marital contact³³  with a pregnant woman is a proper marriage. it was rightly stated HE MAY RETAIN HER.³⁴  According to you, however, who maintain that the halizah of a pregnant woman is not a valid halizah and the marital contact³⁵  with a pregnant woman is not a valid marriage, it should have been stated, 'He must repeat contact and only then he may retain her'! — The meaning of HE MAY RETAIN HER is that he must repeat contact and then HE MAY RETAIN HER, but not otherwise.³⁶

Others say: Resh Lakish raised an objection against R. Johanan: IF THE CHILD IS NOT VIABLE HE MAY RETAIN HER. This is quite correct according to my view; since I maintain that the halizah of a pregnant woman is not a valid halizah and marital contact with a pregnant woman is not a valid marriage, it was rightly stated HE MAY RETAIN HER, [meaning that] he must repeat contact and then HE MAY RETAIN HER, since otherwise this³⁷  would not have been permitted.³⁸  According to you,³⁹  however, it should have been stated, 'If he wishes he may divorce her and if he prefers he may continue to live with her'! — It should have been indeed;⁴⁰  only because in the earlier clause it was stated HE MUST DIVORCE HER, it was also stated in the latter clause HE MAY RETAIN HER.

An objection was raised: 'Where a levir married his yebamah who was found to be pregnant, her rival may not be married, since it is possible that the child would be viable'. On the contrary! If the child were viable her rival would be exempt!⁴¹  — But read: Since it is possible that the child would not be viable.⁴²  Now, if it could be imagined that marital contact with a pregnant woman is to be regarded as a valid marriage, why may not her rival be married? She should be exempted through the marital contact of her associate! — Abaye replied: Both⁴³  agree that by marital contact she does not exempt [her rival]; they differ only on the question of halizah. R. Johanan is of the opinion that the halizah of a pregnant woman is a valid halizah, though marital contact with a pregnant woman is not a valid marriage, while Resh Lakish is of the opinion that marital contact with a pregnant woman is no valid marriage, nor is halizah with a pregnant woman a valid halizah. Said Raba: Whatever is your opinion? If marital contact with a pregnant woman is a valid marriage. the halizah of a pregnant woman should be a valid halizah; or if marital contact with a pregnant woman is no valid marriage, the halizah of a pregnant woman also should be no proper halizah; for we have an established rule

1. Whose husband died without issue.
2. Although the child died soon after.
3. Since a viable child was born the halizah is rendered void.
4. She, unlike any other haluzah, may marry a priest. V. n. 3 supra.
5. I.e., if it was of a premature birth.
6. Prior to the levirate marriage.
7. Since the levirate marriage should not take place where the deceased brother has had any issue.
8. A sin-offering for their unwitting transgression in contracting a forbidden marriage (one's brother's wife) where the precept of the levirate marriage did not apply. V. supra n. 7.
9. Since in either case he has been born from a lawful union: If he is a nine-months child he is the legitimate offspring of the deceased brother; and if he is a seven-months child of the surviving brother, the deceased had died without issue and the marriage between the widow and the surviving brother was accordingly lawful.
10. The offering prescribed for doubtful trespass. V. Lev. V, 17ff and cf. Ker. 17b.
11. Who miscarried.
12. The miscarriage proved that the previous halizah or marriage were lawful.
13. R. Johanan and Resh Lakish.
14. V. BaH a.l. Cur. edd. reverse the order.
15. Deut. XXV, 5.
16. The deceased whose widow has now miscarried.
17. [H].
18. [H] 'consider', 'investigate'. The 'Ayin ([H]) of [H] is interchanged with the Aleph ([H]) of [H].
19. Inquire whether the deceased has been survived by any kind of child. Even a miscarriage is deemed to be a child. Cf. B.B., Sonc. ed., p. 474. nn. 6ff.
20. The prophet, who could predict the future.
21. Of course she would.
22. That she has actually miscarried, though after the halizah or levirate marriage.
23. The prohibition for the woman to marry a priest.
24. One not knowing the circumstances of this particular case would erroneously assume that any other haluzah may also be married to a priest.
25. V. supra n. 2. Had not this been specifically stated it might have been assumed that, as the halizah is invalid, she is not rendered unfit at all.
26. Because she does.
27. Who regard the halizah as valid.
28. And the prohibition to marry each other's relatives and his rendering her unfit for a priest would be inferred as self-evident.
29. Lit., yes, thus also'.
30. The ruling concerning halizah not being applicable in this context, since a viable child was born.
31. So in old editions. Cur. edd. omit 'also'.
32. Thus, as in the first clause, omitting all reference to halizah.
33. Of the levir.
34. Emphasis on MAY. No second contact is necessary after the miscarriage, (since the first was valid) and the levir may also, if he wishes, divorce her.
35. Of the levir.
36. Lit., 'it is not enough without such'. V. Emden, a.l. Cur. edd. omit the last two words.
37. The option of either retaining or divorcing her.
38. Cf. n. 3 supra.
39. Who deem the marriage to be valid.
40. Lit., 'yes thus also'.
41. And free to marry. since her deceased husband is now survived by a living child, and neither she nor the other widow is subject to halizah or levirate marriage.
42. So that his mother as well as her rival would be subject to the levir, the former's previous marital contact, during her pregnancy. being invalid.
43. R. Johanan and Resh Lakish.