Babylonian Talmud: Tractate Yebamoth

Folio 89a

the latter¹  gave her a letter of divorce he has not thereby disqualified her from marrying a priest',²  it may be inferred that she requires no divorce;³  for should she require a divorce, why does he not disqualify her from marrying a priest!⁴  — Rather,⁵  in the final clause it will be assumed⁶  that the betrothal was an erroneous one.⁷  In the first clause also [let it be said that] it would be assumed that the marriage was an erroneous one!⁸  The Rabbis have penalized her.⁹  Then let them penalize her in the final clause also! — In the first clause where she committed a forbidden act¹⁰  they penalized her; in the final clause where she did not commit a forbidden act, the Rabbis did not penalize her.

SHE HAS NO [CLAIM TO HER] KETHUBAH, [because] what is the reason why the Rabbis have provided a kethubah for a woman? In order that it may not be easy for the husband¹¹  to divorce her!¹²  But in this case let it be easy for him, to divorce her.¹³

SHE HAS NO [CLAIM TO] … USUFRUCT, MAINTENANCE OR EVEN WORN CLOTHES, [because] the conditions¹⁴  entered in the kethubah¹⁵  are subject to the same laws as the kethubah¹⁶  itself.

IF SHE HAD TAKEN ANYTHING FROM THE ONE OR FROM THE OTHER, [SHE MUST RETURN IT]. Is this not obvious! — As it might haved been assumed that since she has already seized it, it is not to be taken from her, hence we were taught [that SHE MUST RETURN IT].

THE CHILD … IS A BASTARD. Elsewhere we learned: Terumah¹⁷  from levitically unclean produce may not be set apart for that which is levitically clean.¹⁸  If, however, such terumah has been set apart it is valid if the act was done in error, but if it was done wilfully it is null and void.¹⁹  Now what is meant by 'it is null and void'? — R. Hisda replied: The act is absolutely null and void, even that griva²⁰  [which has been designated as terumah] returns to its former state of tebel.²¹  R. Nathan son of R. Oshaia replied: It is null and void in respect of making the remainder²²  fit for use, but [that which has been set apart] becomes terumah.²³  R. Hisda does not give the same explanation as R. Nathan son of R. Oshaia, for, should it be said [that the portion set apart] is lawful terumah, it might sometimes happen that one would wilfully neglect to set apart the terumah [from the remainder].²⁴

But why should this be different from, [the following case concerning] which we learned: If a man has set apart as terumah a cucumber which was found to be bitter, or a melon which turned out to be decayed²⁵  [the fruit becomes] terumah; but [from the remainder] terumah must again be set apart!²⁶  Do you raise an objection from a case where one has acted unwittingly²⁷  against a case where one has acted wilfully?²⁸  Where one has acted unwittingly,²⁹  no forbidden act has been committed; when, however, one has acted wilfully,³⁰  a forbidden act has been committed.

A contradiction, however, was pointed out between two acts committed unwittingly: Here³¹  it is stated, 'It is lawful terumah if the act was done unwittingly',³²  while there sit was stated, 'Terumah,' but [from the remainder] terumah must again be set apart'! — There,³³  it is an erroneous act amounting almost³⁴  to a wilful one, since he should have tasted it.³⁵

A contradiction was also pointed out between two cases of wilful action: Here³⁶  it is stated, 'but if it was done wilfully, it is null and void', while elsewhere we learned: If a man has set apart as terumah [the produce] of an unperforated plant-pot³⁷  for [the produce of] a perforated pot,³⁸  [the former becomes] terumah but [from the latter] terumah must again be separated!³⁹  — In [the case of produce grown in] two different vessels⁴⁰  a man would obey;⁴¹  in [that of] one vessel⁴²  he would not obey.⁴³

Now according to R. Nathan, son of R. Oshaia, who explained that 'the act is null and void in respect of making the remainder fit for use but [that that which has been set apart] becomes terumah.⁴⁴

1. Who betrothed her.
2. Infra 92a.
3. Even Rabbinically; and that, therefore, the letter of divorce given is null and void.
4. A divorced woman, even if the divorce was given to her in accordance with a Rabbinical and not a Pentateuchal ordinance. is forbidden to be married to a priest. Cf. infra 94a.
5. The fact is that no divorce is required, as had been first assumed.
6. Seeing that she is released without any letter of divorce.
7. Release from which requires no divorce. Hence there is no need to provide against the assumption that 'the first husband had divorced her and the other had lawfully betrothed her etc.', suggested supra.
8. Cf. supra n. 8. Why then was a letter of divorce required?
9. For contracting a marriage without first making the necessary enquiries.
10. Unlawful marriage.
11. Lit., 'in his eyes'.
12. Cf. Keth. 11a.
13. And thus sever a forbidden union.
14. Such as the undertaking of maintenance etc. which, like the specified amount of the kethubah are entered in the marriage contract.
15. I.e., the contract. This is one of the meanings of 'kethubah', v. n. 18.
16. I.e., the specified sum due to the woman on the husband's death or on her divorce.
17. V. Glos.
18. Since the former is forbidden to be eaten the priest would thereby suffer a loss.
19. Lit., 'he did not do, even anything'. Ter. II, 2, Pes. 33a, Men. 25b.
20. A measure of capacity. V. Glos.
21. And forbidden to all.
22. The levitlcally clean produce (Rashi).
23. And the priest may use it for the purposes for which it is fit such as, for instance, fuel.
24. V. supra note 6, believing that the portion he had set apart. and which had assumed the name of terumah, had exempted it.
25. Lit., 'having an offensive smell'.
26. Ter. III, 1, Kid. 46b; which proves that the possibility of neglecting this second separation of terumah does not render null and void the whole act.
27. The case of the cucumber or the melon where the man believed it to be in good condition.
28. The second case in the first Mishnah cited.
29. The case of the cucumber or the melon where the man believed it to be in good condition.
30. The second case in the first Mishnah cited.
31. In the first cited Mishnah.
32. Implying that no further terumah for the remainder need be set apart.
33. In the second Mishnah quoted.
34. Lit., 'near'.
35. The fruit, before setting it apart as terumah.
36. V. supra note 3.
37. Which is not subject to terumah, since it has not grown directly from the ground.
38. Which is subject to terumah. A plant in a perforated pot is deemed to be growing from the ground since it derives its nourishment through the holes of the pot from the ground itself.
39. Dem. V, 10; Kid. 46a, Men. 70a. Why is the terumah in this case valid, while in the other it becomes tebel again?
40. As in the last cited Mishnah where the produce designated as terumah grew in one kind of pot while the other produce grew in another kind of pot.
41. To give terumah again, though the portion he has set apart is also allowed to remain terumah.
42. Where the clean and the unclean grew in the same kind of pot or soil.
43. To give terumah again, were the portion he has set aside allowed to retain the name of terumah. He would argue that, in view of the validity of his act, no further terumah need he given to the priest, whom he would consequently present with unclean terumah. Hence it was ordained that his act is void and that the quantity he has set aside is not to be regarded as terumah.
44. And the priest may use it for the purposes for which it is fit, such, for instance, as burning.

, why is this case different from [the following] where we learned [that if a man has set apart as terumah the produce] of a perforated plant-pot¹  for that of an unperforated one,²  the terumah is valid, but³  may not be eaten⁴  before terumah and tithe from other produce⁵  has been set aside for it!⁶  — Here⁷  it is different, since Pentateuchally the terumah is valid, in accordance with the view of R. Elai; for R. Elai stated: Whence is it inferred that if one separates terumah from an inferior quality for a superior quality, his terumah is valid? It is written, And ye shall bear no sin by reason of it, seeing that ye have set apart from it the best thereof.⁸  [Now, this implies that if you do not set apart from the best but of the worst you shall bear sin]; if, [however, the inferior quality] does not become consecrated, why [should there be any] bearing of sin?⁹  Hence it may be inferred¹⁰  that if one sets apart terumah from an inferior quality for a superior quality, his terumah is valid.¹¹

Said Rabbah to R. Hisda: According to you who maintain that 'the act is absolutely null and void' so that 'even that griva [which has been designated as terumah] returns to its former state of tebel', the reason being¹²  that this is a preventive measure against the possibility 'that one might wilfully neglect to set apart [the terumah from the remainder]'; is there anywhere [I may ask] a law that terumah which is Pentateuchally valid should, owing to the possibility that one might wilfully neglect his duty, be turned into¹³  unconsecrated produce?¹⁴  Could, then, a Beth din lay down a condition that would cause a law of the Torah to be uprooted! — The other replied: And do you not yourself agree with such a ruling? Have we not learned, THE CHILD BY THE ONE HUSBAND OR THE OTHER IS A BASTARD. Now, it is reasonable [that the child] by the second [should be deemed] a bastard,¹⁵  but why [should the child] by the first [be a bastard]? She is, surely, his wife¹⁶  and [the child is consequently] a proper Israelite whom [by regarding him as a bastard] we permit to marry a bastard!¹⁷  The first retorted: Thus said Samuel, 'He is forbidden to marry a bastard'. And so said Rabin, when he came,¹⁸  in the name of R. Johanan. 'He is forbidden to marry a bastard'. Why, then,¹⁹  is he called a bastard? — In respect of forbidding him to marry the daughter of an Israelite.²⁰

R. Hisda sent to Rabbah through R. Aha son of R. Huna [the following enquiry]: Cannot the Beth din lay down a condition which would cause the abrogation of a law of the Torah? Surely it was taught: 'At what period of her age²¹  is a husband entitled to be the heir of his wife [if she dies while still] a minor?²²  Beth Shammai stated: When she attains to womanhood;²³  and Beth Hillel said: When she enters into the bridal chamber.²⁴  R. Eliezer said: When connubial intercourse has taken place. Then he is entitled to be her heir, he may defile himself for her,²⁵  and she may eat terumah by virtue of his rights'. (Beth Shammai said, 'When she attains to womanhood',²⁶  even though she has not entered the bridal chamber!²⁷  — Read, 'When she attains to womanhood and enters the bridal chamber', and it is this that Beth Shammai said to Beth Hillel: In respect of your statement, 'When she enters the bridal chamber', it is only when she has attained womanhood that the bridal chamber is effective, but otherwise the bridal chamber alone is of no avail. 'R. Eliezer said: When connubial intercourse has taken place'. But, surely, R. Eliezer said that the act of a minor has no legal force!²⁸  — Read, 'After she has grown up and connubial intercourse has taken place'.) At all events it was here stated, 'He²⁹  is entitled to be her heir'; but, surely, by Pentateuchal law it is her father³⁰  who should here be her legal heir, and yet it is the husband who is heir in accordance with a Rabbinical ordinance!³¹  — Hefker³²  by Beth din is legal hefker.³³  for R. Isaac stated: Whence is it deduced that hefker by Beth din is legal hefker? It is said, Whosoever came not within three days, according to the counsel of the princes and the elders, all his substance should be forfeited, and himself separated from the congregation of the captivity.³⁴  R. Eleazar stated [that the deduction³⁵  is made] from here: These are the inheritances, which Eleazar the priest. and Joshua the son of Nun, and the heads of the fathers' houses of the tribes of the children of Israel, distributed for inheritance.³⁶  Now, what relation is there between Heads and Fathers? But [this has the purpose] of telling you that as fathers may distribute as an inheritance to their children whatever they wish, so may the heads distribute as an inheritance to the people whatever they wish.

'He may defile himself for her'. But, surely, by Pentateuchal law it is her father who may here defile himself for her, and yet it is the husband who by a Rabbinical law was allowed to defile himself for her!³⁷  — [This was allowed] because she is a meth mizwah.³⁸  Is she, however, a meth mizwah?³⁸  Surely, it was taught. 'Who may he regarded as a meth mizwah? He who has no [relatives] to bury him'. [If, however, he has relatives upon whom] he [could] call and they³⁹  would answer him, he is not regarded as a meth mizwah!⁴⁰  — Here also, since they are not her heirs, they would not answer even if she were to call upon them.

1. V. supra p. 606, n. 10.
2. V. supra p. 606, n. 9.
3. Since it was given for produce which is not subject to terumah, it cannot assume the sanctity of terumah and remains tebel.
4. Even by a priest.
5. Lit., 'place'.
6. Dem. V, 10; Kid. 46b. Why, then, was the terumah in the former case, which is virtually tebel, and is forbidden to be burnt (cf. Shab. 26a), allowed to be used by the priest (v. supra p. 606, n. 16) even though no terumah and tithe have been given for it from other produce?
7. Where unclean produce was used as terumah for clean.
8. Num. XVIII, 32.
9. Surely no wrong has been done where one's action is null and void and other terumah has to he given!
10. Lit., 'from here'.
11. Tem. 5a, B.M. 56a, B.B. 84b, 143a, Kid. 46b.
12. Lit., 'what is the reason'.
13. Lit., 'they brought it out',
14. Hullin v. Glos.
15. Since, owing to the fact that the first husband was still alive, the marriage was unlawful.
16. The marriage with the second having had no validity at all.
17. Who is forbidden to an Israelite. As this, however, is permitted it follows that even a law of the Torah may be superseded by an ordinance of the Rabbis.
18. From Palestine to Babylon.
19. Since he is accordingly regarded as a proper Israelite.
20. Such a restriction is no abrogation of a law of the Torah but a reinforcement of it.
21. Lit., 'from when'.
22. I.e., at what age may it be definitely assumed that the minor is no longer likely to make a declaration of refusal (v. Glos. s.v. mi'un) and may, consequently. be regarded as one's proper wife.
23. Lit., 'when she stands in her height', the age of puberty.
24. Huppah (v. Glos.), which is the preliminary to matrimonial cohabitation.
25. If she died, though he is a priest. V. Lev. XXI, 1f.
26. The husband may defile himself by her corpse and is also entitled to be her heir.
27. When she is not yet regarded as his lawful wife (cf. supra 29b) and. according to law, he is entitled to be her heir. This consequently proves that the Beth din does possess the power to abrogate Pentateuchal laws!
28. Infra 107b, 108a, Keth. 101b.
29. The husband.
30. (That is his legal heir (Rashi). Since the reference here is to a fatherless girl who was given in marriage by her mother or brothers. Such a marriage is not valid by Pentateuchal law which vests the right of giving a minor girl in marriage only in the father].
31. How then could it be maintained that Beth din has no authority to abrogate Pentateuchal laws?
32. [H], a declaration that the property of a certain person is ownerless. V. Glos.
33. The Rabbis have consequently full authority to transfer the property of the minor from her father's heirs to her husband, and such transfer cannot be regarded as an abrogation of the Pentateuchal law. The reading [H] 'was' for the usual [H] 'is' may be a censorial alteration. Cf. Golds. a.l.
34. Ezra X, 8.
35. That Beth din is empowered to dispose of an individual's property in accordance with its legal decisions.
36. Josh. XIX, 51.
37. How then could it be maintained that Beth din has no authority to abrogate Pentateuchal laws?
38. Lit., 'dead of the commandment', a corpse in which no one is interested and the burial of which is obligatory upon any person who discovers it.
39. Lit., 'and others'.
40. 'Er. 17b, Naz. 43b. As there are available the heirs of her father upon whom she could call, why is she regarded as a meth mizwah?