Babylonian Talmud: Tractate Yebamoth

Folio 37a

Raba said so¹  in the evening, but on the following morning he retracted.²  The other exclaimed, "So you have permitted;³  would that you permitted also abdominal fat!"4 Now, what is the law here in respect of the pregnant, or nursing wife of another man who was married to a priest? Did the Rabbis make any provision for a priest⁵  or not?' — The other⁶  replied:⁷  What a comparison!⁸  [The distinction]⁹  is well justified there;¹⁰  since the Rabbis differ from R. Simeon b. Gamaliel in maintaining that the child is deemed to be sound even though he did not live long enough,¹¹  we may, in the case of a priest's wife, where no other course is open,¹²  act in accordance with the view of the Rabbis.¹³  Here,¹⁴  however, in accordance with whose view could we act? If in accordance with that of R. Meir, he surely stated that he¹⁵  must put her out and never remarry her! And if in accordance with the view of the Rabbis, they, surely, stated [that she must be sent away] by means of a letter of divorce!¹⁶

It was stated: [The case of the man who] betrothed a woman¹⁷  within the three [months]¹⁸  and fled, is one concerning which R. Aha and Rafram are at variance. One holds that the man is to be placed under the ban,¹⁹  but the other holds that his flight is sufficient.²⁰  Such an incident once happened, and Rafram ruled,²¹  'His flight is sufficient'.²⁰

IF IT IS DOUBTFUL WHETHER IT IS A NINE-MONTHS CHILD etc. Said Raba to R. Nahman. Let the ruling be that one is to go by the majority of women, and the majority of women bear at nine months!²²  — The other replied: Our women bear at seven months. 'Are your women', the first retorted, 'the majority of the world'! — 'What I mean', the other replied, 'is this: Most women bear at nine months and a minority at seven, and the embryo in the case of every woman who bears at nine is recognizable after a third of the period of her pregnancy;²³  and in the case of this woman, since her embryo was not recognized after a third of the period of her pregnancy²³  [her presumption to belong to] the majority is impaired'.

If in the case of every woman, however, who bears at nine the embryo is recognizable after a third of the period of her pregnancy. it is obvious that with this [woman], since her embryo had not been recognized after a third of the period of her pregnancy, it must be a seven-months child of the second²⁴  husband! — But say rather: When a woman bears at nine months, her embryo in most cases is recognizable after a third of her pregnancy. and with this woman, since her embryo was not recognized after a third of the period of her pregnancy, [her presumption to belong to] the majority is impaired.

Our Rabbis taught: The first [child]²⁵  is fit to be a High priest,²⁶  and the second²⁷  is deemed a bastard owing to his doubtful origin.²⁸  R. Eliezer b. Jacob said: He is not of doubtful bastardy.²⁹  What does he³⁰  mean?³¹  — Abaye replied: It is this that he meant, 'The first child²⁵  is fit to be a High priest²⁶  while the second²⁷  is one of doubtful bastardy²⁹  and is consequently forbidden to marry a bastard.³²  R. Eliezer b. Jacob³³  said: He is not one of doubtful bastardy but an assured bastard, and is consequently permitted to marry a bastard'. Raba replied: It is this that was meant: 'The first³⁴  is fit to be a High priest³⁵  and the second,³⁶  on account of his doubtful origin,³⁷  is deemed to be an assured bastard and is consequently permitted to marry a bastard; but R. Eliezer b. Jacob said: He cannot be deemed an assured bastard on account of his doubtful origin;³⁷  he is, however, regarded as one of doubtful bastardy and is consequently forbidden to marry a bastard.³⁸  And they³⁹  differ in [the interpretation of a ruling] of R. Eleazar. For we learned: 'R. Eleazar said, persons of confirmed illegitimacy may [intermarry] with others of confirmed illegitimacy, but those of confirmed illegitimacy may not intermarry with those of doubtful illegitimacy;⁴⁰  nor those of doubtful, with those of confirmed illegitimacy; nor those of doubtful, with others of doubtful illegitimacy. And the following are of doubtful legitimacy: The shethuki,⁴¹  the asufi⁴²  and the Samaritan.⁴³  And [in connection with this] Rab Judah stated in the name of Rab, 'The halachah is in accordance with the ruling of R. Eleazar, but when I stated this in the presence of Samuel⁴⁴  he said to me, "Hillel taught that the following ten different genealogical classes went up from Babylon:⁴⁵  priests, Levites, Israelites, profaned priests,⁴⁶  proselytes, emancipated slaves, bastards, nethinim,⁴⁷  shetkuki⁴¹  and asufi,⁴²  and all these may inter marry",⁴⁸  and you state that the halachah is in accordance with the ruling of R. Eleazar'!⁴⁹  Now Abaye upholds the opinion of Samuel who stated that the halachah is in agreement with the ruling of Hillel and consequently brings the ruling of R. Eliezer b. Jacob into harmony with the halachah so that there may be no contradiction between the one halachah and the other.⁵⁰  Raba, on the other hand, upholds the opinion of Rab who stated that the halachah is in agreement with the ruling of R. Eleazar, and so he brings the ruling of R. Eliezer b. Jacob into harmony with the halachah in order that there may be no contradiction

1. That halizah must be performed even where the husband is a priest (R. Mesharsheya's version).
2. Exempting the widow from halizah where a priest is involved (Rabina's version).
3. Var. lec. 'permitted it'.
4. Shab. 136af.
5. That temporary separation until the twenty. four months had elapsed shall suffice and that, unlike an Israelite, the priest shall not be required to give a divorce. If an Israelite gives a divorce in such circumstances he may remarry the woman after the lapse of the forbidden period. A priest, however, being forbidden to marry a divorced woman, would never again be allowed to remarry her once she had been divorced.
6. R. Hoshaia.
7. To R. Ashi.
8. Lit., 'thus now'.
9. Between an Israelite and a priest.
10. Where the child died within the first thirty days of his life and his mother was betrothed to a stranger.
11. The full thirty days.
12. Since a priest is forbidden to marry a divorced woman.
13. In regarding the child as viable and thus exempting the mother from the levirate marriage and halizah.
14. Where the levir married his sister-in-law while she was an expectant, or nursing mother.
15. The levir.
16. V. supra 36b and cf. p. 229, nn. 16 and 17.
17. An expectant, or nursing mother who was a widow or divorcee.
18. After she became a widow or divorcee.
19. Until he consents to divorce the woman.
20. He need not be compelled to give her a divorce, and no penalty need be imposed upon him, since his flight may be taken as an indication that it was not his intention to live with her before the lapse of a period of twenty-four months after the birth of a child.
21. Lit., 'said to them'.
22. The child would consequently be deemed to be the son of the first husband, and the marriage of his mother with the levir would be a forbidden union. The levir who thus married unlawfully his brother's wife should bring a sin-offering and not, as stated in our Mishnah, an asham talui.
23. Lit., 'her days'.
24. Lit., 'last'.
25. Born from the levirate marriage, and in respect of whom it is doubtful whether he is a nine-months child of the deceased or a seven-months one of the levir.
26. His legitimacy is beyond all doubt. If he is the son of the deceased brother he is legitimate, though the subsequent levirate marriage is a forbidden one; and if be is the son of the levir, the levirate marriage itself is a lawful union.
27. Any child after the first, born from the levirate marriage.
28. It being possible that the first child was the son of the deceased, and that the levirate marriage was consequently forbidden under the penalty of kareth. Children born from such a union are bastards.
29. Cur. edd., 'There is no bastard on account of doubt'.
30. R. Eliezer b. Jacob.
31. Does he imply that one cannot be described as a bastard unless his illegitimacy is a certainty?
32. Since it is equally possible that he himself is not a bastard.
33. So BaH a.l. cur. edd. omit the last two words.
34. V. supra p, 232, n. 3.
35. V. loc. cit. n. 4.
36. V. loc. cit. n. 5.
37. V. loc. cit. n. 6.
38. Since it is equally possible that he himself is not a bastard.
39. Abaye and Raba in their differing explanations of the Baraitha cited.
40. Since it is possible that a person of doubtful legitimacy may in fact be legitimate, and by marrying one whose illegitimacy is established a bastard, contrary to Pentateuchal law, would be 'admitted into the congregation'. (V. Deut. XXIII, 3).
41. [H] (rt. [H] 'to be silent'), he who knows his mother but does not know who was his father (v. Kid. 6); who 'keeps silent' about his origin.
42. [H] (rt. [H] 'to gather') a child picked up in the street, and whose fatherhood and motherhood are unknown (v. Kid. l.c.); 'a foundling'.
43. Kid. 74a. In all these cases the legitimacy is doubtful: in the first two, because the father is unknown; and in the last, because the Samaritans did not observe all the laws of betrothal, and any Samaritan might be the issue of an illicit union between his father and a woman who had been legally betrothed to another man.
44. After Rab's death, where Rab Judah joined Samuel's academy for a short period.
45. To Judaea, in the days of Ezra.
46. Priests born from a forbidden union (cf. Lev. XXI, 7).
47. [H], plur. of nathin, v. Glos.
48. I.e., each class may intermarry with at least one other class.
49. Kid. 75a. How, in view of Hillel's ruling (v. supra n. 1), could the halachah be said to be in agreement with the view of R. Eleazar according to whom certain classes, not being of confirmed illegitimacy, could never intermarry!
50. The halachah is always determined by the teachings of R. Eliezer h. Jacob whose information was well sifted and authoritative. (V. Git. 67a).

between one halachah and the other.

Said Abaye: Whence do I infer that R. Eliezer b. Jacob treats any doubtful case as a certainty? — [From] what was taught: R. Eliezer b. Jacob said, 'Behold, when a man has intercourse with many women and does not know with which particular woman¹  he had intercourse, and, similarly, when a woman with whom many men had intercourse does not know to which particular man her conception is due, the consequences are that a father will be marrying his daughter and a brother his sister, and the whole world will be filled with bastards,²  and concerning this it was said, And the land became full of lewdness'.³  And Raba?⁴  — He can answer you: It is this that was meant, 'What might be the result'?⁵

More than that⁶  was said by R. Eliezer b. Jacob: A man shall not marry a wife in one country and then proceed to marry one in another country, since [their children]⁷  might marry one another and the result might be that a brother would marry his sister.⁸

But, surely, this could not be [the accepted ruling], for Rab, whenever he happened to visit Dardeshir,⁹  used to announce, 'Who would be mine¹⁰  for the day'! So also R, Nahman, whenever he happened to visit Shekunzib,¹¹  used to announce, 'Who would be mines for the day'!¹²  — The Rabbis came under a special category since they are well known.¹³

But did not Raba say: A woman who had an offer of marriage and accepted must allow a period of seven ritually clean days to pass!¹⁴  — The Rabbis sent their representatives and these presented the announcements to the women.¹⁵  And if you prefer I might say: The Rabbis only had them¹⁶  in their private rooms;¹⁷  for the Master said, 'He who has bread in his basket cannot be compared to him who has no bread in his basket'.¹⁸

A Tanna taught: R. Eliezer b. Jacob said: A man must not marry a woman if it is his intention to divorce her, for it is written, Devise not evil against thy neighbour, seeing he dwelleth securely by thee.¹⁹

If the 'doubtful son'²⁰  and the levir came to claim a share²¹  in the estate of the deceased,²²  the 'doubtful son' pleading, 'I am the son of the deceased and the estate is mine', while the levir pleads, 'You are my son and you have no claim whatsoever upon the estate', it is a case of money of doubtful ownership,²³  and money the ownership of which is doubtful must be divided.²⁴

Where the 'doubtful son'²⁰  and the sons of the levir came to claim their share²¹  in the estate of the deceased, the 'doubtful son' pleading, 'I²⁵  am the son of the deceased and the estate is mine while the sons of the levir plead, 'You are our brother and you have only a share equal to ours', it was the intention of the Rabbis to submit to R. Mesharsheya that this was a case [identical with that] of a Mishnah wherein we learned, 'He²⁶  does not inherit from them²⁷  but they inherit from him',²⁸  since here the case is just the reverse:²⁹  There they tell him, 'produce proof and take [your share]'³⁰  while here he tells them, 'produce proof and take your share'.³¹  R. Mesharsheya, however, said to them, 'Are [the two cases] equal? There, their claim is a certainty³²  while his is doubtful,³³  while here both are doubtful!³⁴  If, however, a case is to be compared to a Mishnah it is to the following: That of a 'doubtful son'³⁵  and the sons of the levir who came to claim³⁶  shares in the estate of the levir himself, where they can say to him: produce proof that you are our brother and take your share'.³⁷

If a 'doubtful son'³⁵  and the sons of the levir came to claim³⁶  their shares in the estate of the levir after the levir had received his share in the estate of the deceased, the sons of the levir pleading, 'produce proof that you are our brother and you will receive [your share]', the 'doubtful son' can tell them, 'Whatever you wish: If I am your brother, give me a share among you;³⁸  and if I am the son of the deceased, return to me the half which your father received when he shared the estate with me'.

Said R. Abba in the name of Rab: The judgment must stand.³⁹  R. Jeremiah said: The judgment is to be reversed.⁴⁰

May it be suggested that they⁴¹  differ on the same principle as that which underlies the dispute between Admon and the Rabbis? For we learned: If a man went to a country beyond the sea and [in his absence] the path to his field was lost,⁴²  he shall, Admon said, use the shortest cut;⁴³  but the Sages said: He must purchase a path even though it will cost him a hundred maneh or else fly in the air.⁴⁴  And in discussing this [Mishnah it was pointed out] against the Rabbis that Admon was perfectly right; and Rab Judah replied in the name of Rab that here it is a case where [the fields of] four persons surrounded it on its four sides.⁴⁵  But [it was asked] what is Admon's reason? And Raba replied: Where four persons⁴⁶  derive their rights of possession from four persons⁴⁷  or where four persons derive it from one⁴⁵  all agree that these⁴⁸  can refuse⁴⁹  him; the dispute only concerns one person who derived his rights from four. Admon is of the opinion that he⁵⁰  can tell him, 'At all events⁵¹  my path is in your fields',⁵²  while the Rabbis hold that the other can answer him, 'If you will keep quiet, well and good;⁵³  and if not, I will return the deeds to their original owners whom you will have no chance to call to law'.⁵⁴  May it, then, be suggested that R. Abba⁵⁵  holds the view of the Rabbis⁵⁶  and R. Jeremiah⁵⁷  that of Admon?⁵⁸  R. Abba can tell you: I may even hold the view of Admon; he made his ruling there⁵⁹  only because he⁶⁰  can say to him,⁶¹  'Whatever you wish to plead,

1. Among those who had issue from their unlawful connection.
2. Thus it has been shewn that, according to R. Eliezer b. Jacob, even persons of doubtful illegitimacy are described as 'bastards'.
3. [H] Lev. XIX, 29, Tosef. Kid. I.
4. How could he maintain a ruling which is contrary to the statement of R. Eliezer b. Jacob just quoted?
5. [H] Lit., 'this, what is it', a play on the word [H] (cf. Ned. 51a), i.e., R. Eliezer b. Jacob implies the possibility that the consequences might be the bringing of bastards into the world; not that all the issue would be deemed confirmed bastards.
6. I.e., not only did he denounce indiscriminate intercourse, as has just been shewn, but he also forbade lawful marriage wherever its consequences might lead to moral chaos.
7. Born in different parts of the world and knowing nothing of each other's parentage.
8. Yoma 18b.
9. [Ardashir, a town near Mahuza. V. Obermeyer pp. 164ff and 175, n, 1.].
10. By marriage.
11. [A town on the eastern bank of the Tigris, v. op. cit. p. 190].
12. Yoma l.c. [Rashi: 'for the days' (plur.). He was anxious to establish a home in Shekunzib which he often visited on business affairs and consequently wished to secure a wife to bless his home whenever he would stay there, v. Obermeyer, p. 191].
13. Should there be any issue from their marriages, in whatever part of the world this might happen, it will be well known to everybody who the father is.
14. Nid. 662; because it is possible that the excitement of the proposal and its acceptance has produced menstrual flow, and the woman has thus become levitically unclean. How, then, could the Rabbis mentioned marry on the very day on which their announcements were made?
15. Seven days prior to the Rabbis' arrival.
16. The women they married for the day.
17. Rt. [H] B.H. [H], 'to be alone with one other person'; but no connubial intercourse took place.
18. Yoma loc. cit., Keth. 62b. The consciousness of having no bread at all intensifies the pangs of hunger, while the presence of bread in the basket, and the knowledge that it may be enjoyed at any moment, mitigates the craving. Similarly, the consciousness of the presence of one's own wife mitigates the sensual desires.
19. Prov. III, 29; v. Git. 90a.
20. A son of whom it is not known whether he was a nine-months child of the deceased, or a seven-months one of the levir. (V. our Mishnah).
21. Lit., 'to divide', or 'to dispute'.
22. Who died without issue and whose expectant wife had married the levir and bore this 'doubtful son'.
23. Lit., 'which is thrown into doubt'; none of the disputants has any claim superior to that of the other.
24. Between the claimants.
25. Lit., 'that man'.
26. The son concerning whom it is uncertain whether he was a nine months child of his mother's first, or a seven-months child of her second husband. Cf. supra n. 2.
27. Neither from the sons of his mother's first, nor from those of her second husband. As his claim is indefinite, since he cannot possibly know who his father really was, each group of heirs, whose claim to the estate of their respective fathers is definite and certain, can plead that he is not the son of their father.
28. Infra 100b. When he dies, the two groups of brothers, since they have exactly equal claims upon his estate, are entitled to equal shares in it.
29. While in the Mishnah cited their claim is certain and his is not, in this case his claim is certain while theirs is not. His claim is certain since at all events he is entitled either to all the estate (if he is the son of the deceased) or to a part at least (if he is the son of the levir), their claim, however, is doubtful since it is possible that he is the son of the deceased and they, as the sons of the levir, have no claim whatsoever upon the estate.
30. Cf. supra note 9.
31. Cf. supra p. 236, n. 11.
32. They know exactly whose children they are and by virtue of whose rights they advance their claims.
33. He is not sure whose son he is.
34. He himself whose claim to heirship is certain is also in doubt as to who exactly his father was and by virtue of whose rights he is entitled to the estate.
35. V. supra p. 236, n. 2.
36. V. loc. cit. n. 3.
37. Here, as in the Mishnah, one claim is a certainty (that of the sons of the levir) while the other (that of the 'doubtful son') is not.
38. And the half he already received he would return. This, of course, applies to the case only where one share in the levir's estate exceeds half the estate of the first deceased brother.
39. Once the levir received a half of the estate of his deceased brother it cannot again be taken away from his heirs. The second claim of the 'doubtful son' is, therefore, invalid.
40. The sons of the levir must either return to the 'doubtful son' the half which their father had received or allow him in their father's estate a share equal to theirs.
41. R. Abba and R. Jeremiah.
42. It being unknown in which of the surrounding fields it lay.
43. He must be allowed a short path through one of the surrounding fields. V. infra for further explanation.
44. Keth. 109b.
45. So that each person can plead that it was not in his field, but in one of the others, that the lost path lay.
46. The respective owners of the four surrounding fields.
47. Who presented or sold the fields to them.
48. The present four owners.
49. Lit., 'reject'.
50. Whose path was lost.
51. In whichever field it was lost,
52. Hence he is entitled to the short cut.
53. Lit., 'you will keep quiet'. He will sell him a path at a reasonable price (Rashi). Cf., however, Tosaf. s.v. [H].
54. Lit., 'and you will not be able to talk law with them'. V. supra note 3.
55. Who does not allow the alternative claim of the 'doubtful son'.
56. Who also disallow the alternate claim of the loser of the field.
57. Who admits the alternative claim of the 'doubtful son'.
58. Who also admits the alternative claim in the case of the lost path.
59. The case of the lost path.
60. The loser of the path.
61. The present owner of the fields.