Babylonian Talmud: Tractate Yebamoth

Folio 54a

How is one to understand, 'Both under compulsion', taught at the School of R. Hiyya? — When, for instance, his intention was intercourse with his wife and idolaters seized him,⁸   brought him and her⁹   into close contact and he cohabited with her.

Whence these words?¹⁰  — From what our Rabbis taught: Her husband's brother shall go in unto her¹¹  is a commandment.¹²  Another interpretation: Her husband's brother shall go in unto her whether in error or in presumption, whether under compulsion or of his own free will.¹³  But, surely, deduction has already been made from this text that it¹⁴  is a commandment!¹⁵  — That it¹⁴  is a commandment¹⁶  may be inferred from And if the man like not¹⁷  which implies that if he likes he contracts the levirate marriage;¹⁶  so that the other text¹¹  may serve the purpose of deducing,¹⁸  'whether in error or in presumption, whether under compulsion or of his own free will'.¹⁹

Another [Baraitha] taught: Her husband's brother shall go in unto her,¹¹  in the natural way; and take her,¹¹  even though in an unnatural way;²⁰  and perform the duty of a husband's brother unto²¹  her,¹¹  only the cohabitation consummates her marriage, but neither money²²  nor deed²²  can consummate her marriage; and perform the duty of a husband's brother unto her,¹¹  even against her will.²³

The Master said:²⁴  'Another interpretation: Her husband's brother shall go in unto her whether in error etc.' But, surely, deduction has been made from this text¹¹  that it²⁵  must be in the natural way! — This may be deduced from To raise up unto his brother a name,¹⁷  [i.e.,] only where a name is raised up;²⁶  so that the other text¹¹  may be employed for the deduction,²⁷  'whether in error or in presumption, whether under compulsion or of his own free will.'²⁸

[To turn to] the main text. 'Rab Judah ruled that one in sleep cannot acquire his sister-in-law, for Scripture stated, Her husband's brother shall go in unto her,²⁹  only when the cohabitation was intentional'.³⁰  But, surely, it was taught: Whether he was awake or asleep! — Read: Whether she was awake or asleep. But, surely, it was taught: Whether he was awake or asleep; or whether she was awake or asleep! — This statement refers to one who was in a state of drowsiness. What state of drowsiness is hereby to be understood? R. Ashi replied: When a man is half asleep and half awake³¹  as, for instance, when he answers on being addressed but is unable to give any sensible reply, and when he is reminded of anything he can recall it.

[To turn to] the main text. Rabbah stated: One who fell from a roof, and his fall resulted in accidental insertion, is liable to pay an indemnity for four things, and if the woman was his sister-in-law no kinyan is thereby constituted. [He must pay her for] bodily injury, for pain inflicted, for enforced unemployment, and for medical expenses; but he is not liable to indemnify her for indignity, for a Master said, 'One is not liable to pay any indemnity for indignity unless it was intentionally caused'.³²

Raba said: If a levir's intention was to shoot³³  against a wall and he accidentally shot at his sister-in-law, no kinyan is thereby constituted;³⁴  if he intended, however, to shoot at a beast and he accidentally shot at his sister-in-law, kinyan is thereby constituted, since some sort of intercourse had been intended.

WHETHER HE PASSED ONLY THE FIRST … STAGE. 'Ulla stated: Whence is it proved that the first stage of contact is pentateuchally forbidden?³⁵  — It is said, And if a man shall lie with a menstruant woman,³⁶  and shall uncover her nakedness, he hath made naked her fountain³⁷  it is deduced from this text that the first stage of contact³⁸  is pentateuchally forbidden. Thus the case of a menstruant has been arrived at; whence that of other forbidden unions?³⁹  And were you to suggest that [their case] might be inferred from that of the menstruant, [it might be retorted] the menstruant is different since she causes the defilement of the man who cohabited with her.⁴⁰  — Rather the deduction³⁹  is made from 'a brother's wife' concerning whom it is written, And if a man shall take his brother's wife, she is a menstruant.⁴¹  Now is a brother's wife always menstruant?⁴²  But [the meaning is] 'like a menstruant as with a menstruant the first stage constitutes the offence, so does the first stage constitute an offence with a brother's wife. But a brother's wife [it may be objected] is different since it is in his⁴³  power to increase the number, for should he wish, he could go on betrothing as many as a thousand!⁴⁴  — The deduction⁴⁵  is rather made from the 'father's sister' and 'the mother's sister'. For it is written in Scriptures And thou shalt not uncover the nakedness of thy mother's sister, nor of thy father's sister, for he hath made naked his near kin.⁴⁶  But it may be objected that a father's sister and a mother's sister come under a different category, since the prohibition in their case is natural.⁴⁷  — If it⁴⁵  cannot be deduced from one category⁴⁸  then let it⁴⁹  be deduced from the two categories.⁵⁰

From which⁵¹  however shall deduction be made? Were it made from a brother's wife⁵²  and a father's sister⁵³  and a mother's sister,⁵³  [it might be objected that] those stand in a different category, since the prohibition of these is due to relationship!⁵⁴  — Deduction is rather made⁵⁵  from the menstruant⁵⁶  and a father's sister and a mother's sister. Those however [it may be objected] are in a different category since the prohibition is natural!⁵⁷  — The deduction⁵⁵  is rather made from the menstruant and a brother's wife; since no⁵⁸  objection can be raised [against the two].⁵⁹

R. Aha son of R. Ika demurred: A menstruant and a brother's wife are different,⁶⁰  since marriage with them cannot be permitted during the lifetime of the man who caused their prohibition! Would you, then, apply [their restrictions] to a married woman who might be permitted to marry even during the lifetime of the man who caused her prohibition?⁶¹

Said R. Aha of Difti to Rabina: Are a menstruant and a brother's wife forbidden to marry only during the lifetime of the man who caused their prohibition but permitted after that?⁶²  With a menstruant, surely,

1. An unconscious act having no legal validity.
2. When in a state of erection the levir fell from a raised bench upon his sister-in-law who happened to be below (v. Rashi).
3. To the woman with whom the accidental contact had taken place.
4. Bodily injury, pain, medical expenses and unemployment during illness. The damages or indemnity must be paid even if the injury was inflicted accidentally or under compulsion (v. B.K. 85b). An indemnity for the indignity caused by the injury is payable only when the act was wilful. V. infra.
5. By the accidental contact. She does not thereby become his lawful wife.
6. Intercourse under compulsion is possible.
7. While he was in the state of erection.
8. While he was in the state of erection.
9. His sister-in-law'.
10. The statement in the first clause of our Mishnah.
11. Deut. XXV, 5.
12. Halizah is a substitute only, and preference must always be given to levirate marriage.
13. Whatever the circumstances the kinyan is valid.
14. The levirate marriage. v. supra note 5.
15. How then may a second deduction be made from the same text?
16. V. supra note 5.
17. Deut. XXV, 7.
18. Lit., 'comes'.
19. Whatever the circumstances the kinyan is valid.
20. Whatever the nature of the intercourse the sister-in-law is thereby acquired by the levir as his lawful wife.
21. v. Emden, a.l. and cf. M.T.
22. Whereby kinyan of betrothal is usually executed.
23. V. Kid. 14a.
24. So BaH a.l. Cur. edd. omit.
25. The cohabitation.
26. From unnatural intercourse there is no issue and no name, of course, can be raised.
27. Lit., 'comes'.
28. Whatever the circumstances the kinyan is valid.
29. Deut. XXV, 5.
30. Emphasis on 'shall go in'.
31. Lit., 'asleep and not asleep, awake and not awake'.
32. Which was not the case here.
33. A euphemism.
34. The act of the intercourse having been accidental and unintentional.
35. In the case of forbidden unions.
36. [H], rendered by E.V. ibid., having her sickness.
37. Lev. XX, 18.
38. [H] (first stage) is of the same rt. as [H] he hath made naked (ibid.).
39. That with the other relatives also, or with any woman one is forbidden to marry, the first stage constitutes the offence.
40. He, like herself, remains levitically unclean for seven days (v. Lev. XV, 24). As the restrictions of the menstruant are more rigid in respect of the defilement of the man they may also be more rigid in respect of the first stage of contact. What proofs however, is this that prohibition of the first stage of contact extends to other forbidden unions?
41. Lev. XX, 21. [H] E.V., it is impurity.
42. Surely not. Why then was she so described?
43. The brother's.
44. The number of relatives forbidden through marriage may be indefinitely increased. Hence only such relatives (e.g., a father's wife, daughter-in-law, mother-in-law) may be inferred from a brother's wife who also is a relative forbidden through marriage. What proof, however, does this provide that restrictions applicable to these are also applicable to relatives forbidden from birth (e.g, a mother, sister, daughter) whose number it is not in one's power to increase?
45. v. supra note 3.
46. Lev. XX, 19.
47. I.e., they are relatives forbidden from birth. What proof, however, does this supply in the case of relatives by marriage? (Cf. supra p. 359, n. 8).
48. Either from that of relatives from birth or from that of relatives by marriage.
49. Cur. edd. insert in square brackets 'one'.
50. Any objection that might be raised against the one could not possibly apply to the other. (Cf. p. 359, nn. 8 and 11).
51. Particular case or cases in the categories mentioned.
52. A relative by marriage.
53. A relative from birth.
54. No proof would consequently be available that the same restriction is applicable to intercourse, for instance, with any married woman who is neither a relative from birth nor by marriage.
55. V. supra p. 359, n. 3.
56. Who may be a stranger.
57. It is not due to any human act.
58. Lit., 'for what'.
59. A brother's wife is a relative forbidden through marriage and consequently the second objection (v. supra p. 359. n. 1) cannot be advanced; while the first objection (v. supra p. 359, n. 8) and the third objection (v. supra n. 7) cannot be raised in view of the law of the menstruant.
60. From the other women one is forbidden to marry.
61. I.e., her husband, if he divorced her.
62. When the man died.

the prohibition depends on the number of days,¹  and with a brother's wife the All Merciful made her pro hibition dependent on the birth of children!²  — But the objection may be raised thus: A menstruant and a brother's wife are different,³  since the man who caused them to be forbidden cannot cause them to be permitted.⁴  Would you [then] apply their restrictions to a married woman whose permissibility is brought about⁵  by the man who caused her to be forbidden? But, said R. Johanan, or as some say, R. Huna son of R. Joshua, Scripture stated, For whosoever shall do any of these abominations, even the souls that do them shall be cut off,⁶  all forbidden unions were compared to the menstruant;⁷  as the first stage constitutes the offence with the menstruant so does the first stage constitute the offence with all the others.

What need, then, was there⁸  to mention the menstruant in the context of brother's wife?⁹  — For an inference like that of R. Huna. For R. Huna stated: Whence in the Torah may an allusion to the sister-in-law¹⁰  be traced? [You ask,] 'Whence'? Surely it is written in Scripture, Her husband's brother shall go in unto her!¹¹  — [The query is] rather, whence the allusion that a sister-in-law is forbidden¹²  during the lifetime of her husband?¹³  But surely this is a logical inference: Since the All Merciful said that she¹⁴  is permitted to marry after the death of her husband, it may be inferred that during the lifetime of her husband¹³  she is forbidden! — [No] for is it not possible [to maintain] that after the death of her husband it¹⁵  is a commandment, and during the lifetime of her husband it¹⁵  is only optional? Or else, [though] indeed,¹⁶  only after the death of the husband,¹⁷  and not during the lifetime of her husband; yet being a negative commandment¹⁸  that is derived from a positive one¹⁹  it has only the force of a positive commandment!²⁰  — Scripture stated: And if a man shall take his brother's wife, she is a menstruant.²¹  Now is a brother's wife always a menstruant?²²  But the meaning is, 'like a menstruant': as a menstruant, although permitted afterwards,²³  is forbidden under the penalty of kareth during the period of her prohibition, so also a brother's wife, though permitted afterwards,²⁴  is forbidden under the penalty of kareth during the lifetime of her husband.

What need, however, was there to mention the first stage in connection with a father's sister or a mother's sister?²⁵  — For an inference like that mentioned in the following question which Rabina addressed to Raba: What is the law if a man passed the first stage in pederasty? [You ask,] 'What is the law in pederasty'? Surely it is written, As with womankind!²⁶  — But [the query is] what is the law when one passed the first stage with a beast? The other replied: No purpose is served by the text²⁷  in [forbidding] the first stage in the case of a father's sister and a mother's sister, since in their case the prohibition is arrived at by the comparison of R. Jonah, apply that text to the first stage with a beast.

Observe! Intercourse with a beast is among the offences subject to the death penalties of a Beth din; why then was the first stage in relation to it enumerated among offences that are subject to the penalty of kareth?²⁸  It should rather have been written among those which are subject to the death penalty of the Beth din,²⁹  and thus one offence that is subject to the death penalty of a court would be inferred³⁰  from a similar offence that is subject to the death penalty of a court! — Since the entire context³¹  was to serve the purpose of exposition,³²  this thing³³  was also included that it may serve the purpose of exposition.

What is the exposition?³⁴  — It was taught, Thou shalt not uncover the nakedness of thy father's sister,³⁵  whether she is paternal or maternal. You say, 'Whether she is paternal or maternal', perhaps it is not so, but only when she is paternal and not when maternal? — This³⁶  is only logical: A man is subject to a penalty³⁷  in this case and he is also subject to penalty³⁷  in the case of his sister; as with his sister it is the same whether she is paternal or maternal, so here also³⁸  it is the same whether she is paternal or maternal. But might it not be argued³⁹  in this way: A man is subject to a penalty³⁷  in this case and is also subject to a penalty³⁷  in the case of his aunt;⁴⁰  as his aunt is forbidden only when she is paternal⁴¹  but not when maternal,⁴²  so here also³⁸  when she is paternal and not when maternal! — Let us consider whom it more closely resembles. A prohibition which is natural⁴³  ought to be inferred from a prohibition which is also natural⁴⁴  but let no proof be adduced from an aunt whose prohibition is not natural.⁴⁵  But might it not be argued⁴⁶  thus: The relatives of a father⁴⁷  should be inferred from the relatives of a father⁴⁰  but let no proof be adduced from a sister who is one's own relative! Hence it was stated,⁴⁸  Thou shalt not uncover the nakedness of thy father's sister,⁴⁹  implying⁵⁰  whether paternal or maternal, and Thou shalt not uncover the nakedness of thy mother's sister,⁵¹  implying also whether paternal or maternal.

What need was there to write it⁵²  in respect of a father's sister and also in respect of a mother's sister?⁵³  — R. Abbahu replied: Both are required. For had the All Merciful written it⁵²  in respect of a father's sister [it might have been assumed to apply to her alone] because her relationship is legally recognized,⁵⁴  but not to a mother's sister.⁵⁵  And had the All Merciful written it⁵⁶  in respect of a mother's sister [it might have been assumed to apply to her alone] because her relationship is certain, but not to her father's sister.⁵⁷  [Hence both were] required.

As to one's aunt concerning whom the Tanna had no doubt that she must be paternal⁵⁸  and not maternal, whence does he derive it? Raba replied: It is arrived at by a comparison between the words 'His uncle' [in two passages]: Here it is written, He hath uncovered his uncle's nakedness,⁵⁹  and there it is written, Or his uncle or his uncle's son may redeem him,⁶⁰  as there he must be paternal and not [necessarily] maternal⁶¹  so here also, he⁶²  must be paternal⁶³  and not [necessarily] maternal. And whence is it⁶⁴  proved there? — Scripture stated, Of his family may redeem him,⁶⁰  and only a father's family may be called the proper family, but the mother's family cannot be called the proper family.⁶⁵

But surely we learned: If a man was told, 'Your wife is dead', and he married her paternal sister; [and when he was told] 'She⁶⁶  also is dead', he married her maternal sister; 'She⁶⁷  too is dead', and he married her paternal sister; 'She⁶⁸  also is dead', and he married her maternal sister, he is permitted⁶⁹  to live with the first,⁷⁰  third⁷¹  and fifth⁷²  who also exempt their rivals;⁷³  but he is forbidden to live with the second and the fourth,⁷⁴  and cohabitation with one of these does not exempt her rival. If, however, he cohabited with the second after the death of the first, he is permitted to live with the second⁷⁵  and with the fourth⁷⁶  who also exempt their rivals,⁷³  but he is forbidden to live⁷⁷  with the third and with the fifth.⁷⁸

1. Even after the death of her husband she remains forbidden to marry anyone until the prescribed number of seven unclean days has passed.
2. If she gave birth to any child she remains forbidden to her husband's brothers even after his death.
3. From the other women one is forbidden to marry.
4. The former is dependent on the prescribed number of days and the latter on the absence of any issue. And thus the original question remains: Whence is deduced the prohibition of the first stage of contact in the ease of all forbidden unions?
5. Through divorce.
6. Lev. XVIII, 29.
7. who also was mentioned in the same Scriptural section.
8. If all forbidden unions are compared with one another and are consequently equal in their restrictions.
9. From which it was inferred supra that these two were to be compared with one another in respect of the first stage.
10. The brother's wife.
11. Deut. XXV, 5.
12. To marry her husband's brother.
13. Even if he had divorced her.
14. The sister-in-law.
15. Marriage by the levir.
16. Lit., yes.
17. May the levir marry her.
18. Not to marry one's sister-in-law during the lifetime of her husband, his brother.
19. Her husband's brother shall go in unto her after the death of his brother.
20. The penalty for the transgression of which is not that of kareth. Whence therefore can he traced in the Bible that the penalty involved is kareth?
21. V. supra p. 359, n. 5.
22. V. supra p. 359, n. 6.
23. When the days of her uncleanness are over.
24. After her husband's death.
25. Who also are included among the others and subject, therefore, to the same restrictions and penalties. Cf. supra p. 362, n. 8.
26. Lev. XVIII, 22. Since pederasty is compared to natural intercourse it is obviously subject to the same restrictions and penalties, including that of the first stage!
27. Lev. XX, 19.
28. Such as intercourse with a father's sister or a mother's sister.
29. As, for instance, intercourse with a mother and a mother-in-law.
30. As supra by R. Jonah's comparison.
31. In which the cases of father's sister and mother's sister were enumerated.
32. As will be shewn infra.
33. The text from which the first stage with a beast is inferred.
34. Just referred to.
35. Lev. XVIII, 12.
36. That a maternal sister is subject to the same restrictions as a paternal one.
37. For intercourse.
38. With one's father's sister.
39. [H] = [H] 'cease and go', similar to apage, [G].
40. The wife of his father's brother.
41. When her husband is his father's paternal brother.
42. If her husband was his father's maternal brother she is not forbidden under this category.
43. Due to birth. A father's sister is forbidden from birth.
44. One's own sister, whose prohibition also begins at birth.
45. Her prohibition being due to the marriage with his father's brother.
46. Cf. supra note 11.
47. A father's sister, for instance.
48. In addition to the prohibition in Lev. XX, 19, And thou shalt not uncover the nakedness of thy mother's sister nor of thy father's sister.
49. Lev. XVIII, 12.
50. By the repetition.
51. Ibid. 13.
52. The repetition.
53. Even if one only had been repeated, the other could have been inferred from it.
54. Children are legally ascribed to their paternal ancestry.
55. Whose relationship is not legally recognized. V. supra note 7.
56. The repetition.
57. Who might not be his sister at all. There is no absolute proof that his father is also her father.
58. The wife of his father's paternal brother.
59. Lev. X, 20.
60. Ibid. XXV, 49.
61. As will be shewn anon.
62. The husband of his aunt.
63. His father's paternal brother.
64. That the relationship must be paternal.
65. V. supra note 7.
66. His second wife.
67. His third wife.
68. The fourth.
69. If it is found that all these are alive.
70. Since the marriage with her was valid.
71. As the union with the second was unlawful, on account of her being his wife's sister, the marriage with her had no validity. As she is not his wife, her sister is a perfect stranger to the man who married them both in succession. The marriage with her sister (his third wife) is consequently valid.
72. The union with the fourth being unlawful, owing to the legal marriage with her sister (the third wife) the marriage with the fifth is consequently legal. Cf. note 5.
73. If he died without issue, and one of his brothers submitted to halizah from one of them.
74. Because the legality of his marriage with the first and third renders them respectively forbidden as 'his wife's sister'. Cf. note 5.
75. As the death of the first has removed from her the prohibition of 'wife's sister', the marriage with her is legal.
76. As the marriage with the second was legally valid, that with the third (as wife's sister) was invalid. The fourth (sister of the third) being in consequence a mere stranger is therefore permitted to be married. Cf. supra note 5.
77. Cf. previous notes mutatis mutandis.
78. Infra 96a.