Yevamot 31

כיון דקא מצרכת חליצה מידע ידעי דחומרא בעלמא הוא אי הכי גירושין נמי ליתני וליצרכה חליצה ומידע ידעי דחומרא בעלמא הוא

Rabba answered: Since you require ḥalitza and you do not exempt her completely, all will know that this is merely a stringency and that the Sages did not decide with certitude that the first betrothal was fully valid. Consequently, they would not come to disregard the other betrothal. Abaye raised a challenge: If so, let the mishna teach the case where it is uncertain whether the item is closer to him or closer to her with regard to divorce, and stipulate that she requires ḥalitza. And they would know that this is merely a stringency and not make a mistake.

אם אתה אומר חולצת מתייבמת הכא נמי אם אתה אומר חולצת מתייבמת ותתייבם ואין בכך כלום אחזקה קא קיימא

He answered him: A mistake could in fact be made here, as, if you say that she must perform ḥalitza then she may also enter into levirate marriage. People might mistakenly think that if she is suitable for ḥalitza then she is also suitable for levirate marriage, and as a result the woman might enter into levirate marriage, despite the fact that it is forbidden for her to do so. Abaye objected: Here too, in the case of uncertain betrothal, the concern exists that if you say that she performs ḥalitza then she might also enter into levirate marriage. Rabba answered: So let her enter into levirate marriage, and there is no problem with that. In this instance she remains with her presumptive status as permitted because she was originally assumed to be permitted and was rendered forbidden only due to our concern. However, there would be no actual transgression involved even if she were to enter into levirate marriage.

איתיביה אביי נפל הבית עליו ועל בת אחיו ואין ידוע איזה מהם מת ראשון צרתה חולצת ולא מתייבמת

Abaye raised an objection to Rabba by citing a case where even in places of doubt, the woman requires ḥalitza. As we learned in a mishna (67b): A house fell on him, on a certain man, and on his brother’s daughter to whom this man was married, and he was childless, and it is unknown which of them died first. If the deceased wife had a rival wife, then her rival wife must perform ḥalitza but may not enter into levirate marriage. If the man had died first, then at the time of his death the rival wife was forbidden to the yavam as the rival wife of his daughter and exempt from levirate marriage. If, however, the daughter had died first, then at the time of the husband’s death the second wife was not the rival wife of a forbidden relative, and requires levirate marriage. It is due to this doubt that she must perform ḥalitza and may not enter into levirate marriage.

אמאי הכא נמי נימא אשה זו בחזקת היתר לשוק עומדת ומספק אתה בא לאוסרה אל תאסרנה מספק

And according to Rabba’s opinion, why is that so? Here too, let us say: This woman, the rival wife, has the presumptive status of being permitted to marry a man from the general public. This is because she was exempt from levirate marriage for the entire period of her marriage as the rival wife of a forbidden relative. And due to the uncertainty whether her rival wife was the first to die you come to render her forbidden and require that she perform ḥalitza. Do not render her forbidden due to an uncertainty.

וכי תימא הכא נמי לחומרא חומרא דאתי לידי קולא הוא שאם אתה אומר חולצת מתייבמת גירושין דשכיחי גזרו בהו רבנן מפולת דלא שכיחי לא גזרו בהו רבנן

And if you would say: Here too, we rule more stringently due to the uncertainty. Nevertheless, this would be a stringency that brings about a leniency, for if you say that she must perform ḥalitza, she may also enter into levirate marriage. However, it is forbidden for her to enter into levirate marriage, because she is possibly forbidden to the yavam as the rival wife of his daughter and therefore forbidden just like the daughter herself. Rabba replied: In cases of divorce, which are common, the Sages issued a rabbinic decree preventing her from performing ḥalitza due to a concern that if she were required to perform ḥalitza then she may enter into levirate marriage as well. In cases of collapse, which are not common, the Sages did not issue a rabbinic decree, because they did not introduce decrees with regard to uncommon matters.

אי נמי גירושין דקיימא ערוה דקא מוכח וצרתה קמצרכת לה חליצה אמרי קמו ביה רבנן בגיטא דגיטא מעליא הוא ואתו לייבומי לצרה מפולת מי קמו בהו רבנן במפולת

Alternatively, there is another reason to differentiate between the cases. In the case of divorce where there is a forbidden relative who indicates that the rival wife is forbidden due to her status as the rival wife of a forbidden relative, and you require that her rival wife perform ḥalitza, people will say: The Sages determined that this bill of divorce is a full-fledged bill of divorce. Consequently, they required her rival wife to perform ḥalitza, and people may come to consummate the levirate marriage with the rival wife based on this mistaken assumption. In cases of collapse, however, could the Sages have determined who died first in the collapse? As it is known to all that there was a doubt that could not be clarified, it is clear that the Sages required the rival wife to perform ḥalitza only due to this uncertainty. Therefore, there is no concern that she would come to enter into levirate marriage because of this ḥalitza.

וגבי גירושין מי לא תנן והתנן היתה עומדת ברשות הרבים וזרקו לה קרוב לה מגורשת קרוב לו אינה מגורשת מחצה על מחצה מגורשת ואינה מגורשת

The Gemara asks: But did we not learn in a mishna about the case where it is uncertain whether the bill of divorce is closer to him or closer to her with regard to situations of divorce whose status is uncertain? And didn’t we learn in a mishna: In a case where his wife was standing in the public domain and he threw her the bill of divorce, if the bill landed closer to her, she is divorced. If it was closer to him, she is not divorced. If it was half and half, i.e., if the bill of divorce landed midway between the man and the woman, there is uncertainty whether she is divorced or whether she is not divorced.

ואמרינן למאי הלכתא דאי כהן הוא אסורה ליה ואי ערוה היא צרתה בעיא חליצה ולא אמרינן שאם אתה אומר חולצת מתייבמת

And we say: With regard to what halakha was the ruling said that she is both divorced and not divorced? The Gemara explains that this affects two areas of halakha. The first is that if the man divorcing his wife is a priest, then his wife is forbidden to him due to the uncertainty that she may in fact be divorced through that bill of divorce. Consequently, he would then be unable to remarry her. The second ramification is that if the woman being divorced was a forbidden relative to her husband’s brother, and her husband died childless, then her rival wife would require ḥalitza. The mishna indicates that in this type of divorce whose status is uncertain as well, the Sages require the rival wife to perform ḥalitza, and we do not say that if you say that she must perform ḥalitza, she may enter into levirate marriage. Here there is no such concern.

הא איתמר עלה רבה ורב יוסף דאמרי תרווייהו הכא בשתי כיתי עדים עסקינן אחת אומרת קרוב לה ואחת אומרת קרוב לו דהוה ליה ספיקא דאורייתא ומתניתין דהכא בכת אחת דהוה ליה ספיקא דרבנן

The Gemara responds: But wasn’t it stated with regard to that mishna that this is referring to a very specific set of circumstances? It is Rabba and Rav Yosef who both say: The doubt here does not result from the facts of the case themselves, but from conflicting testimonies and an inability to decide between them. Here, we are dealing with two sets of witnesses, one of which says that the bill fell closer to her, and one of which says that it fell closer to him. This, then, is an uncertainty in matters of Torah law, for in this case there are two testimonies, each one complete by itself, yet they contradict one another. Such instances are deemed to have the status of an uncertainty with regard to Torah law, and therefore the ruling is stringent. But the mishna here is referring to one set of witnesses who were divided in their testimony or who could not clarify exactly what had occurred. This is considered to be an uncertainty in matters of rabbinic law alone, as there is only a single uncorroborated testimony, and in cases of uncertainty in matters of rabbinic law the ruling is lenient.

וממאי דמתניתין דהכא בכת אחת דומיא דקדושין מה קדושין בכת אחת אף גרושין בכת אחת וקדושין גופייהו ממאי דבכת אחת דלמא בשתי כיתי עדים אי בשתי כיתי עדים תתייבם ואין בכך כלום

The Gemara asks: And from where is it known that the mishna here is referring to a case of uncertainty with one set of witnesses? The Gemara responds: It is similar to that of betrothal. Just as with regard to betrothal it is referring to a case of uncertainty with one set of witnesses, so too, with regard to divorce it is referring to a case of one set of witnesses. The Gemara wonders: And with regard to betrothal itself, from where is it known that the mishna is referring to a case of uncertainty that involves one set of witnesses? Perhaps it is referring to a case of two sets of witnesses? The Gemara answers: If the mishna is referring to a case of two sets of witnesses who contradict one another, then let her enter into levirate marriage, and there is no problem with that, as there are two witnesses testifying that there was never a betrothal. Therefore, both the cases of betrothal and divorce must be referring to a situation where there is one set of witnesses.

קיימי עדים וקאמרי קרוב לה ואת אמרת תתייבם ואין בכך כלום ותו בשתי כיתי עדים נמי ספיקא דרבנן היא דאמרינן אוקי תרי לבהדי תרי ואשה אוקמה אחזקה

The Gemara challenges: How can one say that? After all, there are witnesses who are standing before us and saying that the object of betrothal fell closer to her. Accordingly, she was betrothed and her rival wife is the rival wife of a forbidden relative. And yet you say to let her enter into levirate marriage and there is no problem with that? And furthermore, with regard to the fundamental difference between two pairs of witnesses and a single pair, the case of two pairs of witnesses is also considered an uncertainty in matters of rabbinic law. This is not considered to be uncertainty with regard to the reality of what actually happened, which would be a case of uncertainty in matters of Torah law, but rather a contradiction between two opposing testimonies. In these cases we say: Place two witnesses against two witnesses, and let the two testimonies cancel each other out. Therefore, the halakha would be to let the woman remain in her original presumptive status. Accordingly, this type of uncertainty stems only from rabbinic law and not from Torah law.

מידי דהוה אנכסי דבר שטיא דבר שטיא זבין נכסי אתו בי תרי ואמרי כשהוא חלים זבין ואתו בי תרי ואמרו כשהוא שוטה זבין ואמר רב אשי אוקי תרי להדי תרי

The Gemara cites a proof for this: This is just as it is in the case concerning the property of a man named Bar Shatya, who was referred to by this name because he would occasionally go insane. The case is as follows: Bar Shatya sold property. Two witnesses came forward and said that he sold it when he was healthy and therefore the sale was valid. And two others came forward and said that he sold it when he was insane, and so the sale was void. Rav Ashi said with regard to this matter: Place two witnesses against two witnesses and let the testimonies cancel each other out. As there is no valid testimony to rely on,

וארעא אוקמא בחזקת בר שטיא

let the land remain in the possession of Bar Shatya. Since no substantiated proof was brought forth, the land remains in the hands of its current possessor. As such, the same should be true with regard to cases of betrothal and divorce whose status is uncertain; the woman should remain in her former presumptive status.

אלא אמר אביי יגיד עליו ריעו תנא בקידושין והוא הדין לגירושין תנא בגירושין והוא הדין לקידושין

Rather, Rabba’s understanding of the mishna must be rejected, and Abaye said: The mishna should be understood according to that which is written: “His fellow speaks of him” (Job 36:33). This principle teaches that a related case can be inferred from the single case cited. The mishna teaches the case where it is uncertain whether the item is closer to him or closer to her with regard to betrothal, and the same is true with regard to divorce if it is uncertain whether the bill of divorce fell closer to him or closer to her. Similarly, the mishna teaches the case of bills that were written in a questionable manner with regard to divorce, and the same is true with regard to betrothal.

אמר ליה רבא אי יגיד עליו ריעו מאי זהו דקתני

Rava said to him: If you understand that the legal ruling in all of these cases is the same, and the mishna was written in the style of: His fellow speaks of him, then what is the meaning of the term: This is, that the mishna teaches? The mishna in fact emphasizes that this is a betrothal whose status is uncertain and this is a divorce whose status is uncertain, which indicates this case alone and no other.

אלא אמר רבא כל שיש בקידושין יש בגירושין ויש בגירושין מה שאין בקידושין וזהו דגירושין לאו דוקא אלא משום דתנא זהו בקידושין תנא נמי זהו בגירושין וזהו דקידושין למעוטי מאי למעוטי זמן דליכא בקידושין

Rather, Rava said: All of the cases that exist with regard to betrothal whose status is uncertain exist in cases of divorce as well. However, there are some cases of uncertainty with regard to divorce that do not exist with regard to betrothal, as betrothal performed with a questionable bill is not disqualified. Accordingly, the term: This is, utilized in the mishna with regard to divorce, is not specific and does not imply exclusion of the case where it is possibly closer to him and possibly closer to her. Rather, because the mishna teaches the ruling of: This is, with regard to betrothal, where it is specific it teaches the phrase: This is, with regard to divorce as well. The Gemara asks: And what does the phrase: This is, mentioned with regard to betrothal, come to exclude? The Gemara answers: It comes to exclude the matter of the date, which is not essential with regard to betrothal, as when one betroths a woman by means of a document the date need not be written.

ומפני מה לא תקנו זמן בקידושין הניחא למאן דאמר משום פירי ארוסה לית לה פירי

The Gemara asks about this matter itself: And for what reason did they not institute that the date must be included in the betrothal document? This policy works out well according to the one who says that the reason the Sages instituted that the date must be written on a bill of divorce is due to the profits. As the husband receives the profits from the wife’s properties during the period of their marriage, it was necessary to write a date on the bill of divorce in order to know at what point his right to receive or sell these items was terminated. However, it was not necessary to include a date on a deed of betrothal, as this document serves only to create a bond of betrothal, and there are no profits from a betrothed woman. A husband does not have the right to receive profits from his betrothed’s property until she is his full-fledged wife.

אלא למאן דאמר משום בת אחותו ליתקין זמן

However, according to the one who says that the Sages instituted the requirement of including the date in the bill of divorce due to a case where a man is married to the daughter of his sister, then they should institute that he must include the date in a deed of betrothal as well. Occasionally a man might marry the daughter of his sister, whom he loves all the more because she is his close relative in addition to being his wife. If he knows that she acted licentiously while she was married to him, he might grant her a bill of divorce without a date so as to save her from the death penalty. Were witnesses to come forth and testify to her behavior, she could claim that at the time of her licentious act she was already a divorced woman. If this was indeed the reason for the Sages’ instituting the requirement of including the date in a bill of divorce, then the date should be included in a deed of betrothal as well, for an undated document of betrothal could be utilized equally well to prove the innocence of the daughter of his sister. If she acted licentiously in the period prior to her betrothal, she would not be penalized. Therefore, the date should be written on this document as well.

משום דאיכא דמקדש בכספא ואיכא דמקדש בשטרא לא תקון רבנן זמן

The Gemara answers: Because there are those who betroth by means of money and those who betroth by means of a deed, the Sages did not institute that the date must be written in the document. As the date of the betrothal has no place in the act of betrothal by means of money, the Sages did not distinguish between the various modes of betrothal.

אמר ליה רב אחא בריה דרב יוסף לרב אשי והא עבדא דאיכא דקני בכספא ואיכא בשטרא ותקון רבנן זמן התם רובא בשטרא הכא רובא בכספא

Rav Aḥa, son of Rav Yosef, said to Rav Ashi: But with regard to a slave, where there are those who acquire them with money and there are those who acquire them with a deed, the Sages nevertheless instituted that the date must be written in a slave’s deed of purchase. He responded: There, with regard to slaves, the majority of people purchase them by means of a deed. Here, with regard to betrothal, the majority of people perform betrothal by means of money.

איבעית אימא משום דלא אפשר היכי ליעביד לינחה גבי דידה מחקה ליה לינחה גבי דידיה זמנין דבת אחותו היא ומחפה עלה

If you wish, say a different reason why the Sages did not institute that the date must be included in a deed of betrothal. This is due to the fact that it is not possible to institute this in a manner that will ensure that no problems will result. How would we do this? If we leave the deed of betrothal with her, she will erase the date, and so it would remain impossible to prove the juncture at which her licentious behavior took place. If we leave the deed with him, then there are times when she is his sister’s daughter and he might cover for her by erasing the date himself.

לינחה גבי עדים אי דזכירי ליתו ליסהוד ואי לא זמנין דחזו מכתבא ואתו מסהדי ורחמנא אמר מפיהם ולא מפי כתבם

If we leave it with the witnesses who signed the document, if they remember themselves the date when the deed was given to the woman, the date need not be written in the document itself, for let them come forth and testify from their memory. And if they do not remember by themselves, then there are times when they see the date that is written and come forth to testify on that basis. And the Merciful One states: “By the mouth of two witnesses, or at the mouth of three witnesses, shall a matter be established” (Deuteronomy 19:15). From this verse it is derived: From their mouths, and not from their writings, indicating that testimony is proper only if the individual stated it of himself, and not on the basis of what is written.

אי הכי בגירושין נמי נימא הכי התם להצלה דידה קאתי הכא לחובה דידה קאתי:

The Gemara asks: If that is so, let us say that with regard to divorce as well. In cases of divorce there should also be a concern lest the woman erase the date on the bill of divorce in her possession. The Gemara responds: There, in the case of a bill of divorce, the date comes to save her, since the bill of divorce removes her status as a man’s wife. She therefore would fear erasing anything lest she disqualify the bill altogether, thereby possibly rendering herself a married woman again (Ramban). Here, however, when dealing with a deed of betrothal, the date comes to her disadvantage, since until now she was presumed to be a single woman, and if there is no date on the document then she clearly cannot be punished.

מתני׳ שלשה אחין נשואין שלש נכריות ומת אחד מהן ועשה בה השני מאמר ומת הרי אלו חולצות ולא מתייבמות

MISHNA: In the case of three brothers who were married to three unrelated women, and one of the brothers died, the following occurred: The second brother performed levirate betrothal with the wife of the deceased brother and before he was able to consummate the levirate marriage he died as well, leaving behind two women who happen before the third brother for levirate marriage. Then those two women must perform ḥalitza and may not enter into levirate marriage.

שנאמר ומת אחד מהן יבמה יבא עליה שעליה זיקת יבם אחד ולא שעליה זיקת שני יבמין רבי שמעון אומר מייבם לאיזו שירצה וחולץ לשניה:

As it is stated: “If brothers dwell together and one of them dies and he has no child, the wife of the dead man shall not be married outside of the family to one not of his kin; her brother-in-law will have intercourse with her” (Deuteronomy 25:5). This teaches that a woman eligible for levirate marriage is one who has one levirate relationship and not one who has a double levirate relationship. In this case, the wife of the first deceased brother requires levirate marriage due to both the marriage with her first husband as well as the levirate betrothal with the second brother. Rabbi Shimon says: He may consummate the levirate marriage with whichever woman he wishes and then perform ḥalitza with the second.

גמ׳ ואי זיקת שני יבמין דאורייתא חליצה נמי לא תיבעי אלא מדרבנן וגזירה שמא יאמרו שתי יבמות הבאות מבית אחד מתייבמות

GEMARA: The Gemara asks: If the halakha that a woman who has a double levirate relationship is exempt from levirate marriage is by Torah law, as indicated by the proof offered in the mishna, she should not require ḥalitza as well, but be completely exempt. Rather, it is by rabbinic law. The restriction on levirate marriage in this case is not by Torah law, as by Torah law the brother is allowed to consummate the levirate marriage with both of these women since each was the wife of a different brother. The requirement for ḥalitza in this case was instituted as a rabbinic decree lest people say that two yevamot who come from a single household can enter into levirate marriage. Since the second brother had performed levirate betrothal, people might come to think that both were actually married to him. If the third brother consummates the levirate marriage with both women, it would lead people to think that it is permitted to take two of a brother’s wives in levirate marriage, when in fact the Torah allows the yavam to marry only a single wife of the deceased.

ונייבם לחדא וניחלוץ לחדא גזירה שמא יאמרו בית אחד מקצתו בנוי

The Gemara asks: So let him consummate the levirate marriage with one woman and perform ḥalitza with the other one, and this would eliminate our concern. The Gemara responds: We do not do this due to a rabbinic decree lest they say: When there are two women from a single household, part of it must be built