Today's Daf Yomi
April 15, 2022 | י״ד בניסן תשפ״ב
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This month's learning is sponsored by Leah Goldford in loving memory of her grandmothers, Tzipporah bat Yechezkiel, Rivka Yoda Bat Dovide Tzvi, Bracha Bayla bat Beryl, her father-in-law, Chaim Gershon ben Tzvi Aryeh, her mother, Devorah Rivkah bat Tuvia Hacohen, her cousins, Avrum Baer ben Mordechai, and Sharon bat Yaakov.
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Masechet Yevamot is sponsored by Ahava Leibtag and family in memory of her grandparents, Leo and Esther Aaron. "They always stressed the importance of a Torah life, mesorah and family. May their memory always be a blessing for their children, grandchildren, great-grandchildren and great-great grandchildren".
Yevamot 39
Why didn’t Abaye question Raba from the ketuba in our Mishna where the woman’s family has a non-definitive claim to her money while the yabam has a definitive claim (as the property is in his possession) and yet they split the proceeds according to Beit Shamai? To answer that question, they reread the Mishna and claim that Beit Shamai wasn’t relating to that case. Abaye brings a third explanation of the two parts of the Mishna by distinguishing between when the property came to the woman. The first part is referring to property given to her when she was waiting for yibum, therefore the yabam has no claim to the property. The second was referring to property that was given to her when she was married to the first husband, which would then go by default to the yabam upon the husband’s death. According to Abaye, the debate between Beit Shamai and Beit Hillel regards whether or not the husband’s hand is considered like the wife’s hand in her possession or is it stronger than the wife’s hand. The yabam‘s hand will always be weaker than the original husband – if so, he will either have as much power as the woman or less. Rava beings a fourth explanation of the Mishna – the first part is when the yabam did not yet do maamar and in the second part he did do maamar. Those who agree/disagree with Rava each have different understandings of Beit Shamai’s position regarding maamar – did Beit Shamai just say it was strong enough to exempt her relative (i.e. if her sister fell to yibum to the yabam that she did maamar with). Or is it strong enough to give him rights to her property? Rav Papa thinks that the Mishna fits best with Abaye’s reading, except for the fact that the second part is about the woman dying when it could have easily brought the case of her still alive and regarding the produce. The Mishna stated that she is his wife for all intents and purposes – for what purposes? Why is this necessary to have been mentioned? Ideally the oldest brother should do yibum. But if he does not, the court asks each of the brothers. In the event that no one wants to do it, the court goes back to the oldest brother and requires him to do it. One does not wait for a brother who is not available at present to do yibum if there are others to do it. There are two versions of a dispute between Rabbi Yochanan and Rabbi Yehoshua ben Levi. The first version is if there is a younger brother who will do yibum or an older brother who will do chalitza, which is preferable. In the second version, all agree that a younger brother who will do yibum is preferable, but the debate is regarding chalitza – is there a preference for the older brother or is he and a younger brother equal if they are only doing chalitza? Our Mishna is brought according to each version to try to prove on or the other opinion but all attempts are unsuccessful. A Mishan is Bechorot 13a states that originally yibum was preferable, but now chalitza is preferable as people are not doing yibum with the intention of the mitzva. Rav stills holds, though, that the choice is up to the brother and we do not force him to do chalitza. Rami bar Hama holds that the law changed yet again and yibum is ideal. Why? The Gemara explains his position that they originally held like Abba Shaul that one cannot perform yibum unless one only intends to perform the mitzva, but not because he finds her beautiful or just wishes to marry her. But then they held like the rabbis who permitted yibum in any case. A braita is brought that is explained in two different ways – one way to match Abba Shaul and the other to match the rabbis.
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וקסבר אביי ידו כידה
And Abaye holds that according to Beit Hillel, with regard to the husband’s rights to his wife’s property, his hand is like her hand, but not any stronger. Accordingly, the yavam has a weaker hand in her property than she does, because the rights of a yavam are always weaker than those of the husband himself. Therefore, she is considered to be in possession of the property, and when she dies, her heirs, i.e., her father and his heirs, inherit it. However, Beit Shammai assume that the husband’s hand is stronger than his wife’s hand. Therefore, the hand of the yavam, which is weaker than the husband’s hand, is nevertheless equally as strong as the hand of the yevama, and therefore they rule that if she dies, the yavam and her heirs divide up the property.
אמר ליה רבא אי דנפלי לה כשהיא תחתיו דבעל דכולי עלמא לא פליגי דידו עדיפא מידה
Rava said to him: I hold that if the property was bequeathed to her when she was still under the first husband, everyone, i.e., both Beit Hillel and Beit Shammai, agrees that his hand is stronger than her hand, and therefore the hand of the yavam will be equally as strong as that of the yevama, and if she dies the property will be divided between the two sides.
אלא אידי ואידי דנפלו לה כשהיא שומרת יבם רישא דלא עבד בה מאמר סיפא דעבד בה מאמר
Therefore, Rava presents his own resolution to the apparent inconsistency in Beit Shammai’s rulings in the mishna: Rather, both this first clause and that latter clause concern cases in which property was bequeathed to her when she was a widow waiting for her yavam. The first clause concerns a case in which the yavam had not performed a levirate betrothal with her, and the latter clause concerns a case in which he had performed a levirate betrothal with her.
וקסבר רבא מאמר לבית שמאי עושה ודאי ארוסה וספק נשואה ודאי ארוסה לדחות בצרה וספק נשואה לחלוק בנכסים
The Gemara explains the rationale behind Rava’s explanation: And Rava holds that according to Beit Shammai a levirate betrothal with a yevama affords her a status equivalent in some aspects to a woman who is definitely betrothed and in other aspects to a woman about whom there is uncertainty whether she is married. The Gemara elucidates: She is similar to a woman who is definitely betrothed with regard to nullifying the levirate bond of her rival wife, so that the rival wife need not perform levirate marriage or ḥalitza. And she is similar to a woman about whom there is uncertainty whether she is married with regard to empowering the yavam to divide up the property that she attained while she was waiting for her yavam.
איתמר משמיה דרבי אלעזר כוותיה דרבא ואיתמר משמיה דרבי יוסי ברבי חנינא כוותיה דאביי
The Gemara notes: An interpretation of the mishna was stated in the name of Rabbi Elazar that is in accordance with the opinion of Rava. And an interpretation of the mishna was stated in the name of Rabbi Yosei, son of Rabbi Ḥanina that is in accordance with the opinion of Abaye.
ומי אמר רבי אלעזר הכי והא אמר רבי אלעזר מאמר לבית שמאי אינה קונה אלא לדחות בצרה בלבד
The Gemara objects: And did Rabbi Elazar actually state this interpretation that is in accordance with the opinion of Rava? But didn’t Rabbi Elazar say: According to Beit Shammai a levirate betrothal acquires the yevama only with regard to nullifying the levirate bond of a rival wife so that she need not perform levirate marriage or ḥalitza? This implies that it does not acquire her with regard to enabling the yavam to inherit from her. This, then, stands in contrast to Rava’s interpretation.
איפוך ואי בעית אימא לעולם לא תיפוך אמר לך רבי אלעזר כי אמרי אנא דלא סגי לה בגט אלא דבעי נמי חליצה לחלוק בנכסים דלא קני מי אמרי
The Gemara offers two possible solutions: Reverse the opinions, so that Rabbi Elazar is in accordance with Abaye, and Rabbi Yosei, son of Rabbi Ḥanina, is in accordance with Rava. And if you wish, say instead: Actually, do not reverse the opinions, since Rabbi Elazar can be understood to be in accordance with the opinion of Rava, as Rabbi Elazar could have said to you: When I said the statement that implies that a levirate betrothal acquires in a very limited sense, the intention was only that its acquisition is limited in that giving her a bill of divorce is still insufficient for her in order to release her from the levirate bond; rather, she also needs to perform ḥalitza. But to suggest that he does not acquire her with regard to dividing up the property she attained, did I say that? Certainly not, as in fact a levirate betrothal acquires her to that extent as well, as Rava assumes.
אמר רב פפא דיוקא דמתניתין כוותיה דאביי ואף על גב דקשיא מתה
Rav Pappa said: The precise formulation of the mishna is in accordance with the opinion of Abaye, even though according to his opinion it is difficult that the mishna discusses the case in which she died.
דקתני נכסים הנכנסים ויוצאים עמה מאי נכנסין ומאי יוצאין לאו נכנסין לרשות הבעל ויוצאים מרשות הבעל לרשות האב
The Gemara explains Rav Pappa’s statement: The precise formulation of the mishna is in accordance with the opinion of Abaye, as it teaches: Her property that enters and leaves the marriage with her. What is the meaning of: That enters, and what is the meaning of: That leaves? Is it not: That enters into the domain of the husband and leaves the domain of the husband when she dies, and then enters into the domain of the father? Interpreted in this way, the mishna explicitly considers the period in which she was still married to her first husband, and likewise, the case in which she came into the possession of property should be understood as referring to a case in which she did so while still married. This is consonant with Abaye’s interpretation, but not with Rava’s.
ואף על גב דקשיא מתה אדמפלגי בגופה ולאחר מיתה לפלגו בחייה ולפירות
And when Rav Pappa said: Even though according to his opinion it is difficult that the mishna discusses the case in which she died, he meant as follows: Instead of disputing who has the rights to the property itself, which necessitates considering the case after her death, let Beit Hillel and Beit Shammai dispute the more immediate case when she is still alive and dispute who has the rights to the use and produce of the property.
ותו לא מידי:
The Gemara concludes: And there is nothing more to say concerning this matter, i.e., as Rav Pappa noted, while it is undeniable that the mishna’s formulation supports Abaye’s interpretation, it is equally true that the case discussed by the mishna would appear to challenge his interpretation.
כנסה הרי היא כו׳: למאי הלכתא אמר רבי יוסי בר חנינא לומר שמגרשה בגט ומחזירה
§ The mishna states: If the yavam consummated the levirate marriage with her, then her legal status is that of his wife in every sense. The Gemara asks: With regard to what halakha is this said? Rabbi Yosei bar Ḥanina said: It is to say that once they have consummated the levirate marriage, the only way to legally dissolve the marriage is if he divorces her with a bill of divorce, but ḥalitza is of no avail, and after divorcing her, he is permitted to take her back to be his wife, as the prohibition against engaging in relations with one’s brother’s wife does not apply to her.
מגרשה בגט פשיטא סלקא דעתך אמינא הואיל וכתיב ולקחה לו לאשה ויבמה אמר רחמנא ועדיין יבומי הראשון עליה בחליצה אין בגט לא קא משמע לן
The Gemara examines the first clause of Rabbi Yosei bar Ḥanina’s statement: Isn’t it obvious that to sever his relationship with her, he divorces her with a bill of divorce? The Gemara explains: It is necessary to teach this because it could enter your mind to say that since it is written: “And take her to him to be his wife and consummate the levirate marriage with her” (Deuteronomy 25:5), continuing to refer to the marriage as a levirate marriage even after the verse has stated that he took her as a wife, one might claim the Merciful One is saying that the original levirate bond continues to be upon her, and therefore, with ḥalitza, yes, they can sever the relationship, but with a bill of divorce, no, the relationship would not be severed. Therefore, the mishna teaches us that she is considered to be his wife to the extent that the relationship can be severed with a bill of divorce alone.
מחזירה פשיטא סלקא דעתך אמינא מצוה דרמיא רחמנא עליה עבדה השתא תיקום עליה באיסור אשת אח קא משמע לן
The Gemara examines the second clause: Isn’t it obvious that after divorcing her, he is permitted to take her back to be his wife? The Gemara explains: It is necessary to teach this because it could enter your mind to say that the mitzva that the Merciful One imposes upon him, he has performed, and therefore now that there is no longer any mitzva to marry her, she should once again be established as forbidden to him by the prohibition against engaging in relations with one’s brother’s wife. To dispel this notion, the mishna teaches us that she is considered to be his wife to the extent that there is no longer any prohibition against remarrying her.
ואימא הכי נמי אמר קרא ולקחה לו לאשה כיון שלקחה הרי היא כאשתו לכל דבר:
The Gemara challenges this ruling: But why not say that this is indeed so, that she should be forbidden to him? The Gemara explains: The verse states: “And take her to him to be his wife” (Deuteronomy 25:5), indicating that once he has taken her, her legal status is that of his wife in every sense.
ובלבד שתהא כתובתה כו׳: מאי טעמא אשה הקנו לו מן השמים
§ The mishna states: The only exception to this is that her marriage contract will still be payable from the property of her first husband and not from the property of the yavam. The Gemara asks: What is the reason for this? The Gemara explains: A wife was acquired to him by Heaven, and since he did not choose her as a wife, he did not obligate himself to pay her marriage contract.
ואי לית לה מן הראשון תקינו לה משני כדי שלא תהא קלה בעיניו להוציאה:
The Gemara qualifies the mishna’s ruling: And if she has no ability to collect her marriage contract from the first husband, since he died without leaving any property with which to pay it, the Sages instituted an ordinance for her benefit that she must receive a new marriage contract from her second husband, i.e., the yavam. This was instituted so that she will not be demeaned in his eyes such that he will easily divorce her, since doing so would incur a financial burden on his part.
מתני׳ מצוה בגדול לייבם לא רצה מהלכין על כל האחין לא רצו חוזרין אצל גדול ואומרים לו עליך מצוה או חלוץ או ייבם
MISHNA: The mitzva of levirate marriage is for the eldest of the brothers to consummate the levirate marriage. If the eldest does not want to do so, the court goes to each of the other brothers and requires them to do so. If they do not want to do so, the court returns to the eldest brother and says to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.
תלה בקטן עד שיגדיל או בגדול עד שיבא ממדינת הים או חרש או שוטה אין שומעין לו אלא אומרים לו עליך מצוה או חלוץ או ייבם:
If a brother made his decision dependent upon the possibility that one of his other brothers will eventually consummate the levirate marriage, saying that he will do so only if they do not, then whether he makes it dependent upon a brother who is currently a minor, meaning that the yevama should wait until he matures, or upon his eldest brother, who is not currently present, meaning the yevama should wait until he comes from overseas, or upon a brother who is a deaf-mute or an imbecile, as perhaps they will recover from their disability, the court does not listen to him; rather, the judges of the court say to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.
גמ׳ איתמר ביאת קטן וחליצת גדול פליגי בה רבי יוחנן ורבי יהושע בן לוי חד אמר ביאת קטן עדיפא וחד אמר חליצת גדול עדיפא
GEMARA: An amoraic dispute was stated: Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree with regard to a case in which there is the choice between consummation of the levirate marriage by a younger brother [katan] or ḥalitza performed by the eldest brother. One said: The consummation of the levirate marriage by a younger brother is preferable, and the other one said: Ḥalitza performed by the eldest brother is preferable.
מאן דאמר ביאת קטן עדיפא דהא מצוה בייבום ומאן דאמר חליצת גדול עדיפא במקום גדול ביאת קטן לאו כלום היא
The Gemara explains: With regard to the one who said that consummation of the levirate marriage by a younger brother is preferable, this is due to the fact that the mitzva of levirate marriage is through the actual consummation of the levirate marriage, and therefore preference is always given to consummation over the performance of ḥalitza. And the one who said ḥalitza performed by the eldest brother is preferable, this is because in the presence of the eldest brother, the consummation of the levirate marriage by a younger brother is considered nothing.
תנן לא רצה מחזירין על כל האחין מאי לאו לא רצה לייבם אלא לחלוץ וקתני מהלכין אצל האחין שמע מינה ביאת קטן עדיפא
The Gemara suggests proof for the first opinion: We learned in the mishna: If the eldest does not want to consummate the levirate marriage, the court goes to each of the other brothers and requires them to do so. The Gemara suggests: What, is it not that he does not want to consummate the levirate marriage but is willing to perform ḥalitza? And yet the mishna teaches: The court goes to each of the other brothers and requires them to consummate the levirate marriage. If so, conclude from here that the consummation of the levirate marriage by a younger brother is preferable.
לא לא רצה לחלוץ ולא לייבם דכוותה גבי האחין לא רצו לא לחלוץ ולא לייבם אמאי חוזרים אצל הגדול למיכפייה לכפייה לדידהו כיון דמצוה עליה דידיה רמיא לדידיה כייפינן
The Gemara rejects the proof: No, the mishna might concern a case where the eldest does not want either to perform ḥalitza or to consummate the levirate marriage, and it is only because he is unwilling to do either that the other brothers are considered. The Gemara asks: If this is so, then in the corresponding situation in the mishna in which the brothers do not want to do so, the case must be that they do not want either to perform ḥalitza or to consummate the levirate marriage. But if so, why should the court invest the extra effort to return to the eldest brother to force him to fulfill his duty? Let the court force the other brothers to fulfill their duty. The Gemara responds: Since the mitzva is incumbent upon the eldest brother ab initio, it is he who is forced.
תנן תלה בקטן עד שיגדיל אין שומעין לו ואי ביאת קטן עדיפא אמאי אין שומעין לו נינטר דלמא גדיל ומייבם
The Gemara suggests another proof: We learned in the mishna: If a brother makes his decision dependent upon a brother who is currently a minor, the court does not listen to him. The Gemara suggests: And if the consummation of the levirate marriage by a minor is preferable, why shouldn’t the court listen to him? Let the court wait, as perhaps he will mature and consummate the levirate marriage. Rather, it would appear that the mishna assumes that consummation by a younger brother is not preferable.
וליטעמיך ובגדול עד שיבא ממדינת הים אין שומעין לו אמאי נינטר דלמא אתי וחליץ אלא כל שהויי מצוה לא משהינן
The Gemara responds: But even according to your reasoning that ḥalitza performed by an elder brother is preferable, what about the next case in the mishna, where a brother asks to wait until the eldest brother comes from overseas? In that case, as well, the mishna rules: They do not listen to him; but why shouldn’t they listen to him? Let the court wait, as perhaps he will come and at the very least perform ḥalitza. Rather, it is clear that the reason for the mishna’s ruling is that we do not delay the performance of any mitzva; therefore, if one of the brothers is currently unable to perform the mitzva, he is not considered at all. Consequently, no proof can be derived from the mishna.
אית דאמרי בביאה כולי עלמא לא פליגי דביאת קטן עדיפא כי פליגי בחליצת קטן
There are those who say that the dispute is more limited: When there is the possibility of consummating the levirate marriage, everyone agrees that the consummation of the levirate marriage by a younger brother is preferable to the ḥalitza of the eldest brother. When they disagree it is with regard to the significance of the ḥalitza of a younger brother.
והכי איתמר חליצת קטן וחליצת גדול פליגי בה רבי יוחנן ורבי יהושע בן לוי חד אמר חליצת גדול עדיפא וחד אמר כי הדדי נינהו
And this is how the dispute was stated: Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree with regard to a case in which there is choice between the ḥalitza of a younger brother or the ḥalitza of the eldest brother. One said: The ḥalitza of the eldest brother is preferable. And the other one said: The two options are equivalent.
מאן דאמר חליצת גדול עדיפא דהא מצוה בגדול ואידך כי אמרינן מצוה בגדול לענין יבום אבל לענין חליצה כהדדי נינהו
The Gemara explains: With regard to the one who said that the ḥalitza of the eldest brother is preferable, this is due to the fact that the mitzva of levirate marriage and ḥalitza is incumbent upon the eldest brother. And the other Sage would respond to this claim by saying that when we say that the mitzva is incumbent upon the eldest brother, that is only with regard to the consummation of the levirate marriage; however, with regard to performing ḥalitza, all the brothers are equivalent.
תנן לא רצו חוזרין אצל גדול מאי לאו לא רצו לייבם אלא לחלוץ וקתני חוזרין אצל גדול ושמע מינה חליצת גדול עדיפא
The Gemara suggests a proof for the first opinion: We learned in the mishna: If the younger brothers do not want to consummate the levirate marriage, the court returns to the eldest brother and demands that he at least perform ḥalitza. The Gemara suggests: What, is it not that the other brothers did not want to consummate the levirate marriage but are willing to perform ḥalitza? And yet the mishna teaches: The court returns to the eldest brother so that he can perform ḥalitza. If so, conclude from here that the ḥalitza of the eldest brother is preferable.
לא לא רצו לא לחלוץ ולא לייבם דכוותיה גבי גדול לא רצה לא לחלוץ ולא לייבם אלא אמאי חוזרין אצל גדול למכפייה לכפייהו לדידהו כיון דמצוה עליה דידיה רמיא לדידיה כייפינן
The Gemara rejects the proof: No, the mishna might concern a case where the other brothers did not want either to perform ḥalitza or to consummate the levirate marriage, and it is only because they are unwilling to do either that the court returns to the eldest brother. The Gemara asks: If this is so, then in the corresponding situation in which the mishna states: The eldest brother does not want to do so, the case must be that he does not want either to perform ḥalitza or to consummate the levirate marriage. But if so, when the younger brothers also refuse, why should the court invest the extra effort to return to the eldest brother to force him to fulfill his duty? Let the court force them, i.e., the younger brothers, to fulfill their duty. The Gemara responds: Since the mitzva is incumbent upon the eldest brother ab initio, it is he who is forced.
תא שמע תלה בגדול עד שיבא ממדינת הים אין שומעין לו ואי סלקא דעתך חליצת גדול עדיפא אמאי אין שומעין לו נינטר דלמא אתי וחליץ
Come and hear another proof from the mishna: If a younger brother makes his decision dependent upon the eldest brother, who is currently unavailable, suggesting that the yevama wait until he comes from overseas, the court does not listen to him. And if it enters your mind to suggest that the ḥalitza of the eldest brother is preferable, why doesn’t the court listen to him? Let the court wait, as perhaps he will come and perform ḥalitza. Rather, it would appear that the mishna assumes that with regard to performing ḥalitza, all the brothers are equivalent.
ולטעמיך בקטן עד שיגדיל אין שומעין לו אמאי נינטר דלמא גדיל ומייבם (אי נמי אתי איהו ומייבמה) אלא כל שהויי מצוה לא שהינן
The Gemara challenges this: But even according to your reasoning, you certainly agree that the possibility of consummating the levirate marriage is always preferable. If so, what about the previous case in the mishna, where the eldest brother asks to wait until his brother who is a minor will mature? In that case as well the mishna rules: The court does not listen to him; but why shouldn’t the court listen to him? Let the court wait, as perhaps he will come and consummate the levirate marriage. Alternatively, in the case where the eldest brother is overseas, let the court wait, as perhaps he will come and consummate the levirate marriage with her. Rather, it is clear that the reason for the mishna’s ruling is that we do not delay the performance of a mitzva. Therefore, if one of the brothers is currently unable to perform the mitzva, he is not considered at all. Consequently, no proof can be derived from the mishna.
תנן התם מצות יבום קודמת למצות חליצה בראשונה שהיו מתכוונין לשם מצוה עכשו שאין מתכוונין לשם מצוה אמרו מצות חליצה קודמת למצות יבום
§ We learned in a mishna there (Bekhorot 13a): The mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza; this applied initially, when yevamin would have intent for the sake of fulfilling the mitzva. Now, that they do not have intent for the sake of fulfilling the mitzva, the Sages say: The mitzva of performing ḥalitza takes precedence over the mitzva of consummating the levirate marriage.
אמר רב אין כופין כי אתו לקמיה דרב אמר להו אי בעית חלוץ אי בעית ייבם בדידך תלא רחמנא ואם לא יחפוץ האיש הא אם חפץ אי בעי חליץ אי בעי ייבם
Rav said: Nevertheless, the court does not force a yavam to perform ḥalitza, and if he wishes it is still permitted to consummate the levirate marriage. The Gemara relates: When a yavam and a yevama would come before Rav, he would say to them: If you want, perform ḥalitza, and if you want, consummate the levirate marriage, as the Merciful One makes the matter dependent upon your will, as it is stated: “And if the man does not wish to take his yevama” (Deuteronomy 25:7) then he should perform ḥalitza. This implies that the Torah requires him to perform ḥalitza only if he does not wish to consummate the levirate marriage, but if he wishes to do so, then the matter is dependent upon him, and if he wants, he performs ḥalitza, or if he wants, he consummates the levirate marriage.
ואף רב יהודה סבר אין כופין מדאתקין רב יהודה בגיטא דחליצה איך פלונית בת פלוני אקרבת ית פלוני יבמה קדמנא לבי דינא ואשתמודעינהו דאחוה דמיתנא מאבא ניהו ואמרי ליה אי צבית ליבם יבם ואי לא איטלע לה רגליך דימינא
The Gemara notes: And even Rav Yehuda holds that the court does not force a yavam to perform ḥalitza if he wishes to consummate the levirate marriage. This is apparent from the fact that Rav Yehuda enacted in his court that the following formulation should be used in the bill of ḥalitza: That so-and-so, daughter of so-and-so, brought so-and-so, her yavam, before the court; and we identified him, that he was indeed the paternal brother of the deceased, and we said to him: If you desire to consummate the levirate marriage, then consummate the levirate marriage, and if not, extend your right foot toward your yevama so that she may perform ḥalitza by removing your shoe.
ואיטלע לה רגלא דימינא ושרת סיניה מעל רגלוהי וירקת באנפוהי רוקא דמתחזיא לבי דינא על ארעא
The bill of ḥalitza would continue with the account of what transpired: And he extended [itla] his right foot toward her and she removed his shoe from upon his foot and she spat toward his face spittle, which was visible to the court, and which landed upon the ground.
ורבי חייא בר אויא מסיים בה משמיה דרב יהודה ואקרינהו מה דכתיב בספר אורייתא דמשה
And Rabbi Ḥiyya bar Avya in the name of Rav Yehuda would conclude the formulation of the bill of ḥalitza with an additional sentence: And we dictated to the yavam that which is written in the book of the Torah of Moses, i.e., those declarations that the yavam and the yevama are required to make.
אשתמודעינהו פליגי בה רב אחא ורבינא חד אמר בעדים וחד אמר אפילו קרוב אפילו אשה והלכתא גלויי מילתא בעלמא הוא ואפילו קרוב ואפילו אשה:
The Gemara clarifies the intention of the phrase: And we identified him as the brother of the deceased. Rav Aḥa and Ravina disagree concerning this phrase: One said that this identification must be made through legally valid witnesses, and the other one said that even the testimony of a relative and even the testimony a woman is accepted in this case. The Gemara concludes: And the halakha is that the identification of the brother is considered to be merely revealing the facts of the matter, and therefore, even a relative and even a woman may tender this information.
בראשונה שהיו מתכוונין לשם מצוה מצות יבום קודמת למצות חליצה ועכשיו שאין מתכוונין לשם מצוה אמרו מצות חליצה קודמת למצות יבום
The Gemara paraphrases the mishna from tractate Bekhorot: Initially, when yevamin would have intent for the sake of fulfilling the mitzva of consummating the levirate marriage, the mitzva of consummating the levirate marriage took precedence over the mitzva of performing ḥalitza. And now that they do not have intent for the sake of fulfilling the mitzva, the Sages say: The mitzva of performing ḥalitza takes precedence over the mitzva of consummating the levirate marriage.
אמר רמי בר חמא אמר רבי יצחק חזרו לומר מצות יבום קודמת למצות חליצה אמר ליה רב נחמן בר יצחק אכשור דרי
Rami bar Ḥama said that Rabbi Yitzḥak said: In later generations they went back to once again saying that the mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza. Rav Naḥman bar Yitzḥak said to him in wonderment: Could it be that the later generations improved their spiritual level and now intend to consummate the levirate marriage solely for sake of fulfilling the mitzva?
מעיקרא סברי לה כאבא שאול ולבסוף סברי לה כרבנן
The Gemara explains that this does not mean that the later generations improved themselves; rather, initially they held in accordance with the opinion of Abba Shaul, and so the mitzva of performing ḥalitza took precedence, and in the end they held in accordance with the opinion of the Rabbis, and so the mitzva of consummating the levirate marriage took precedence.
דתניא אבא שאול אומר הכונס את יבמתו לשם נוי ולשום אישות ולשום דבר אחר כאילו פוגע בערוה וקרוב אני בעיני להיות הולד ממזר וחכמים אומרים יבמה יבא עליה מכל מקום
As it is taught in a baraita: Abba Shaul says that one who consummates a levirate marriage with his yevama for the sake of her beauty, or for the sake of marital relations, or for the sake of another matter, e.g., he wishes to inherit her husband’s estate, it is considered as though he encountered a forbidden relation, and I am inclined to view the offspring born from such a union as a mamzer. Since the prohibition against engaging in relations with one’s brother’s wife is overridden only for the sake of fulfilling the mitzva of consummating the levirate marriage, when one does not have the intention to fulfill that mitzva, the baseline prohibition applies, and so any offspring from the union will be mamzerim. The Rabbis say: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5), which indicates that he should do so in any case, even if his intentions are not solely for the sake of fulfilling the mitzva.
מאן תנא להא דתנו רבנן יבמה יבא עליה מצוה שבתחלה היתה עליו בכלל היתר נאסרה וחזרה והותרה יכול תחזור להתירה הראשון תלמוד לומר יבמה יבא עליה מצוה
The Gemara asks: Who is the tanna who taught the following baraita that the Sages taught: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5); this is to be considered a mitzva, as initially, before she was married to his brother, she was among all other women who are permitted to him, and then when she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would revert to her original permitted status; therefore, the verse states: “Her brother-in-law will have intercourse with her” to teach that it is in fact a mitzva to do so.
מאן תנא אמר רבי יצחק בר אבדימי אבא שאול היא והכי קאמר יבמה יבא עליה מצוה שבתחלה היתה עליו בכלל היתר רצה לשם נוי כונסה רצה לשום אישות כונסה
Who is the tanna who taught this baraita? Rav Yitzḥak bar Avdimi said: It is Abba Shaul, and this is what the baraita is saying: “Her brother-in-law will have intercourse with her” teaches that it is permitted to engage in intercourse with her only when his intention is to fulfill a mitzva, as initially, before she was married to his brother, she was among all other women who are permitted to him, and so, if he wished, then even for the sake of her beauty he was permitted to marry her, or similarly, if he wished, then even for the sake of marital relations he was permitted to marry her.
נאסרה חזרה והותרה יכול תחזור להתירה הראשון תלמוד לומר יבמה יבא עליה למצוה
When she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would fully revert to her original permitted status; therefore, the verse states: “Her brother-in-law will have intercourse with her” to teach that he is permitted to marry her only when his intention is for the mitzva.
רבא אמר אפילו תימא רבנן והכי קאמר יבמה יבא עליה מצוה שבתחלה היתה בכלל היתר רצה כונסה רצה אינו כונסה
Rava said: You can even say that the baraita is in accordance with the Rabbis, and this is what the baraita is saying: “Her brother-in-law will have intercourse with her” indicates that it is a mitzva to consummate the levirate marriage, as initially, before she was married to his brother, she was among all other women who are permitted to him, and so if he wished, he was permitted to marry her, or if he wished, he was permitted to choose not to marry her.
נאסרה חזרה והותרה יכול תחזור להתירה הראשון רצה כונסה רצה אינו כונסה רצה אינו כונסה
When she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would fully revert to her original permitted status, so that if he wishes, he may marry her, or if he wishes, he may choose not to marry her.
הא אגידה ביה בכדי תיפוק אלא אימא רצה כונסה רצה חולץ לה תלמוד לומר יבמה יבא עליה מצוה
The Gemara interjects that the logic of this last statement seems implausible: Does he really have the option to do as he wishes? Isn’t she bound to him with a levirate bond? Could it be that she will be released from that bond without doing anything? Rather, emend the previous argument and instead say: One might think that if he wishes, he may marry her, or if he wishes not to do so, he performs ḥalitza with her. Therefore, the verse states: “Her brother-in-law will have intercourse with her,” to teach that it is now a mitzva to consummate the marriage, and doing so is preferable to performing ḥalitza.
אימא רישא מצות תאכל במקום קדוש מצוה
The baraita under discussion also presents another case that follows a similar model of initially being permitted, then prohibited, and then once again permitted. The Gemara analyzes the explanations of Rav Yitzḥak and Rava based on that clause of the baraita: Say the first clause and try to explain it in a way consistent with the various explanations of the latter clause: The Torah states concerning the meal-offerings eaten by the priests: “It shall be eaten unleavened in a sacred place” (Leviticus 6:9); this indicates that doing so is a mitzva,
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This month's learning is sponsored by Leah Goldford in loving memory of her grandmothers, Tzipporah bat Yechezkiel, Rivka Yoda Bat Dovide Tzvi, Bracha Bayla bat Beryl, her father-in-law, Chaim Gershon ben Tzvi Aryeh, her mother, Devorah Rivkah bat Tuvia Hacohen, her cousins, Avrum Baer ben Mordechai, and Sharon bat Yaakov.
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Masechet Yevamot is sponsored by Ahava Leibtag and family in memory of her grandparents, Leo and Esther Aaron. "They always stressed the importance of a Torah life, mesorah and family. May their memory always be a blessing for their children, grandchildren, great-grandchildren and great-great grandchildren".
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Yevamot 39
The William Davidson Talmud | Powered by Sefaria
וקסבר אביי ידו כידה
And Abaye holds that according to Beit Hillel, with regard to the husband’s rights to his wife’s property, his hand is like her hand, but not any stronger. Accordingly, the yavam has a weaker hand in her property than she does, because the rights of a yavam are always weaker than those of the husband himself. Therefore, she is considered to be in possession of the property, and when she dies, her heirs, i.e., her father and his heirs, inherit it. However, Beit Shammai assume that the husband’s hand is stronger than his wife’s hand. Therefore, the hand of the yavam, which is weaker than the husband’s hand, is nevertheless equally as strong as the hand of the yevama, and therefore they rule that if she dies, the yavam and her heirs divide up the property.
אמר ליה רבא אי דנפלי לה כשהיא תחתיו דבעל דכולי עלמא לא פליגי דידו עדיפא מידה
Rava said to him: I hold that if the property was bequeathed to her when she was still under the first husband, everyone, i.e., both Beit Hillel and Beit Shammai, agrees that his hand is stronger than her hand, and therefore the hand of the yavam will be equally as strong as that of the yevama, and if she dies the property will be divided between the two sides.
אלא אידי ואידי דנפלו לה כשהיא שומרת יבם רישא דלא עבד בה מאמר סיפא דעבד בה מאמר
Therefore, Rava presents his own resolution to the apparent inconsistency in Beit Shammai’s rulings in the mishna: Rather, both this first clause and that latter clause concern cases in which property was bequeathed to her when she was a widow waiting for her yavam. The first clause concerns a case in which the yavam had not performed a levirate betrothal with her, and the latter clause concerns a case in which he had performed a levirate betrothal with her.
וקסבר רבא מאמר לבית שמאי עושה ודאי ארוסה וספק נשואה ודאי ארוסה לדחות בצרה וספק נשואה לחלוק בנכסים
The Gemara explains the rationale behind Rava’s explanation: And Rava holds that according to Beit Shammai a levirate betrothal with a yevama affords her a status equivalent in some aspects to a woman who is definitely betrothed and in other aspects to a woman about whom there is uncertainty whether she is married. The Gemara elucidates: She is similar to a woman who is definitely betrothed with regard to nullifying the levirate bond of her rival wife, so that the rival wife need not perform levirate marriage or ḥalitza. And she is similar to a woman about whom there is uncertainty whether she is married with regard to empowering the yavam to divide up the property that she attained while she was waiting for her yavam.
איתמר משמיה דרבי אלעזר כוותיה דרבא ואיתמר משמיה דרבי יוסי ברבי חנינא כוותיה דאביי
The Gemara notes: An interpretation of the mishna was stated in the name of Rabbi Elazar that is in accordance with the opinion of Rava. And an interpretation of the mishna was stated in the name of Rabbi Yosei, son of Rabbi Ḥanina that is in accordance with the opinion of Abaye.
ומי אמר רבי אלעזר הכי והא אמר רבי אלעזר מאמר לבית שמאי אינה קונה אלא לדחות בצרה בלבד
The Gemara objects: And did Rabbi Elazar actually state this interpretation that is in accordance with the opinion of Rava? But didn’t Rabbi Elazar say: According to Beit Shammai a levirate betrothal acquires the yevama only with regard to nullifying the levirate bond of a rival wife so that she need not perform levirate marriage or ḥalitza? This implies that it does not acquire her with regard to enabling the yavam to inherit from her. This, then, stands in contrast to Rava’s interpretation.
איפוך ואי בעית אימא לעולם לא תיפוך אמר לך רבי אלעזר כי אמרי אנא דלא סגי לה בגט אלא דבעי נמי חליצה לחלוק בנכסים דלא קני מי אמרי
The Gemara offers two possible solutions: Reverse the opinions, so that Rabbi Elazar is in accordance with Abaye, and Rabbi Yosei, son of Rabbi Ḥanina, is in accordance with Rava. And if you wish, say instead: Actually, do not reverse the opinions, since Rabbi Elazar can be understood to be in accordance with the opinion of Rava, as Rabbi Elazar could have said to you: When I said the statement that implies that a levirate betrothal acquires in a very limited sense, the intention was only that its acquisition is limited in that giving her a bill of divorce is still insufficient for her in order to release her from the levirate bond; rather, she also needs to perform ḥalitza. But to suggest that he does not acquire her with regard to dividing up the property she attained, did I say that? Certainly not, as in fact a levirate betrothal acquires her to that extent as well, as Rava assumes.
אמר רב פפא דיוקא דמתניתין כוותיה דאביי ואף על גב דקשיא מתה
Rav Pappa said: The precise formulation of the mishna is in accordance with the opinion of Abaye, even though according to his opinion it is difficult that the mishna discusses the case in which she died.
דקתני נכסים הנכנסים ויוצאים עמה מאי נכנסין ומאי יוצאין לאו נכנסין לרשות הבעל ויוצאים מרשות הבעל לרשות האב
The Gemara explains Rav Pappa’s statement: The precise formulation of the mishna is in accordance with the opinion of Abaye, as it teaches: Her property that enters and leaves the marriage with her. What is the meaning of: That enters, and what is the meaning of: That leaves? Is it not: That enters into the domain of the husband and leaves the domain of the husband when she dies, and then enters into the domain of the father? Interpreted in this way, the mishna explicitly considers the period in which she was still married to her first husband, and likewise, the case in which she came into the possession of property should be understood as referring to a case in which she did so while still married. This is consonant with Abaye’s interpretation, but not with Rava’s.
ואף על גב דקשיא מתה אדמפלגי בגופה ולאחר מיתה לפלגו בחייה ולפירות
And when Rav Pappa said: Even though according to his opinion it is difficult that the mishna discusses the case in which she died, he meant as follows: Instead of disputing who has the rights to the property itself, which necessitates considering the case after her death, let Beit Hillel and Beit Shammai dispute the more immediate case when she is still alive and dispute who has the rights to the use and produce of the property.
ותו לא מידי:
The Gemara concludes: And there is nothing more to say concerning this matter, i.e., as Rav Pappa noted, while it is undeniable that the mishna’s formulation supports Abaye’s interpretation, it is equally true that the case discussed by the mishna would appear to challenge his interpretation.
כנסה הרי היא כו׳: למאי הלכתא אמר רבי יוסי בר חנינא לומר שמגרשה בגט ומחזירה
§ The mishna states: If the yavam consummated the levirate marriage with her, then her legal status is that of his wife in every sense. The Gemara asks: With regard to what halakha is this said? Rabbi Yosei bar Ḥanina said: It is to say that once they have consummated the levirate marriage, the only way to legally dissolve the marriage is if he divorces her with a bill of divorce, but ḥalitza is of no avail, and after divorcing her, he is permitted to take her back to be his wife, as the prohibition against engaging in relations with one’s brother’s wife does not apply to her.
מגרשה בגט פשיטא סלקא דעתך אמינא הואיל וכתיב ולקחה לו לאשה ויבמה אמר רחמנא ועדיין יבומי הראשון עליה בחליצה אין בגט לא קא משמע לן
The Gemara examines the first clause of Rabbi Yosei bar Ḥanina’s statement: Isn’t it obvious that to sever his relationship with her, he divorces her with a bill of divorce? The Gemara explains: It is necessary to teach this because it could enter your mind to say that since it is written: “And take her to him to be his wife and consummate the levirate marriage with her” (Deuteronomy 25:5), continuing to refer to the marriage as a levirate marriage even after the verse has stated that he took her as a wife, one might claim the Merciful One is saying that the original levirate bond continues to be upon her, and therefore, with ḥalitza, yes, they can sever the relationship, but with a bill of divorce, no, the relationship would not be severed. Therefore, the mishna teaches us that she is considered to be his wife to the extent that the relationship can be severed with a bill of divorce alone.
מחזירה פשיטא סלקא דעתך אמינא מצוה דרמיא רחמנא עליה עבדה השתא תיקום עליה באיסור אשת אח קא משמע לן
The Gemara examines the second clause: Isn’t it obvious that after divorcing her, he is permitted to take her back to be his wife? The Gemara explains: It is necessary to teach this because it could enter your mind to say that the mitzva that the Merciful One imposes upon him, he has performed, and therefore now that there is no longer any mitzva to marry her, she should once again be established as forbidden to him by the prohibition against engaging in relations with one’s brother’s wife. To dispel this notion, the mishna teaches us that she is considered to be his wife to the extent that there is no longer any prohibition against remarrying her.
ואימא הכי נמי אמר קרא ולקחה לו לאשה כיון שלקחה הרי היא כאשתו לכל דבר:
The Gemara challenges this ruling: But why not say that this is indeed so, that she should be forbidden to him? The Gemara explains: The verse states: “And take her to him to be his wife” (Deuteronomy 25:5), indicating that once he has taken her, her legal status is that of his wife in every sense.
ובלבד שתהא כתובתה כו׳: מאי טעמא אשה הקנו לו מן השמים
§ The mishna states: The only exception to this is that her marriage contract will still be payable from the property of her first husband and not from the property of the yavam. The Gemara asks: What is the reason for this? The Gemara explains: A wife was acquired to him by Heaven, and since he did not choose her as a wife, he did not obligate himself to pay her marriage contract.
ואי לית לה מן הראשון תקינו לה משני כדי שלא תהא קלה בעיניו להוציאה:
The Gemara qualifies the mishna’s ruling: And if she has no ability to collect her marriage contract from the first husband, since he died without leaving any property with which to pay it, the Sages instituted an ordinance for her benefit that she must receive a new marriage contract from her second husband, i.e., the yavam. This was instituted so that she will not be demeaned in his eyes such that he will easily divorce her, since doing so would incur a financial burden on his part.
מתני׳ מצוה בגדול לייבם לא רצה מהלכין על כל האחין לא רצו חוזרין אצל גדול ואומרים לו עליך מצוה או חלוץ או ייבם
MISHNA: The mitzva of levirate marriage is for the eldest of the brothers to consummate the levirate marriage. If the eldest does not want to do so, the court goes to each of the other brothers and requires them to do so. If they do not want to do so, the court returns to the eldest brother and says to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.
תלה בקטן עד שיגדיל או בגדול עד שיבא ממדינת הים או חרש או שוטה אין שומעין לו אלא אומרים לו עליך מצוה או חלוץ או ייבם:
If a brother made his decision dependent upon the possibility that one of his other brothers will eventually consummate the levirate marriage, saying that he will do so only if they do not, then whether he makes it dependent upon a brother who is currently a minor, meaning that the yevama should wait until he matures, or upon his eldest brother, who is not currently present, meaning the yevama should wait until he comes from overseas, or upon a brother who is a deaf-mute or an imbecile, as perhaps they will recover from their disability, the court does not listen to him; rather, the judges of the court say to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.
גמ׳ איתמר ביאת קטן וחליצת גדול פליגי בה רבי יוחנן ורבי יהושע בן לוי חד אמר ביאת קטן עדיפא וחד אמר חליצת גדול עדיפא
GEMARA: An amoraic dispute was stated: Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree with regard to a case in which there is the choice between consummation of the levirate marriage by a younger brother [katan] or ḥalitza performed by the eldest brother. One said: The consummation of the levirate marriage by a younger brother is preferable, and the other one said: Ḥalitza performed by the eldest brother is preferable.
מאן דאמר ביאת קטן עדיפא דהא מצוה בייבום ומאן דאמר חליצת גדול עדיפא במקום גדול ביאת קטן לאו כלום היא
The Gemara explains: With regard to the one who said that consummation of the levirate marriage by a younger brother is preferable, this is due to the fact that the mitzva of levirate marriage is through the actual consummation of the levirate marriage, and therefore preference is always given to consummation over the performance of ḥalitza. And the one who said ḥalitza performed by the eldest brother is preferable, this is because in the presence of the eldest brother, the consummation of the levirate marriage by a younger brother is considered nothing.
תנן לא רצה מחזירין על כל האחין מאי לאו לא רצה לייבם אלא לחלוץ וקתני מהלכין אצל האחין שמע מינה ביאת קטן עדיפא
The Gemara suggests proof for the first opinion: We learned in the mishna: If the eldest does not want to consummate the levirate marriage, the court goes to each of the other brothers and requires them to do so. The Gemara suggests: What, is it not that he does not want to consummate the levirate marriage but is willing to perform ḥalitza? And yet the mishna teaches: The court goes to each of the other brothers and requires them to consummate the levirate marriage. If so, conclude from here that the consummation of the levirate marriage by a younger brother is preferable.
לא לא רצה לחלוץ ולא לייבם דכוותה גבי האחין לא רצו לא לחלוץ ולא לייבם אמאי חוזרים אצל הגדול למיכפייה לכפייה לדידהו כיון דמצוה עליה דידיה רמיא לדידיה כייפינן
The Gemara rejects the proof: No, the mishna might concern a case where the eldest does not want either to perform ḥalitza or to consummate the levirate marriage, and it is only because he is unwilling to do either that the other brothers are considered. The Gemara asks: If this is so, then in the corresponding situation in the mishna in which the brothers do not want to do so, the case must be that they do not want either to perform ḥalitza or to consummate the levirate marriage. But if so, why should the court invest the extra effort to return to the eldest brother to force him to fulfill his duty? Let the court force the other brothers to fulfill their duty. The Gemara responds: Since the mitzva is incumbent upon the eldest brother ab initio, it is he who is forced.
תנן תלה בקטן עד שיגדיל אין שומעין לו ואי ביאת קטן עדיפא אמאי אין שומעין לו נינטר דלמא גדיל ומייבם
The Gemara suggests another proof: We learned in the mishna: If a brother makes his decision dependent upon a brother who is currently a minor, the court does not listen to him. The Gemara suggests: And if the consummation of the levirate marriage by a minor is preferable, why shouldn’t the court listen to him? Let the court wait, as perhaps he will mature and consummate the levirate marriage. Rather, it would appear that the mishna assumes that consummation by a younger brother is not preferable.
וליטעמיך ובגדול עד שיבא ממדינת הים אין שומעין לו אמאי נינטר דלמא אתי וחליץ אלא כל שהויי מצוה לא משהינן
The Gemara responds: But even according to your reasoning that ḥalitza performed by an elder brother is preferable, what about the next case in the mishna, where a brother asks to wait until the eldest brother comes from overseas? In that case, as well, the mishna rules: They do not listen to him; but why shouldn’t they listen to him? Let the court wait, as perhaps he will come and at the very least perform ḥalitza. Rather, it is clear that the reason for the mishna’s ruling is that we do not delay the performance of any mitzva; therefore, if one of the brothers is currently unable to perform the mitzva, he is not considered at all. Consequently, no proof can be derived from the mishna.
אית דאמרי בביאה כולי עלמא לא פליגי דביאת קטן עדיפא כי פליגי בחליצת קטן
There are those who say that the dispute is more limited: When there is the possibility of consummating the levirate marriage, everyone agrees that the consummation of the levirate marriage by a younger brother is preferable to the ḥalitza of the eldest brother. When they disagree it is with regard to the significance of the ḥalitza of a younger brother.
והכי איתמר חליצת קטן וחליצת גדול פליגי בה רבי יוחנן ורבי יהושע בן לוי חד אמר חליצת גדול עדיפא וחד אמר כי הדדי נינהו
And this is how the dispute was stated: Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree with regard to a case in which there is choice between the ḥalitza of a younger brother or the ḥalitza of the eldest brother. One said: The ḥalitza of the eldest brother is preferable. And the other one said: The two options are equivalent.
מאן דאמר חליצת גדול עדיפא דהא מצוה בגדול ואידך כי אמרינן מצוה בגדול לענין יבום אבל לענין חליצה כהדדי נינהו
The Gemara explains: With regard to the one who said that the ḥalitza of the eldest brother is preferable, this is due to the fact that the mitzva of levirate marriage and ḥalitza is incumbent upon the eldest brother. And the other Sage would respond to this claim by saying that when we say that the mitzva is incumbent upon the eldest brother, that is only with regard to the consummation of the levirate marriage; however, with regard to performing ḥalitza, all the brothers are equivalent.
תנן לא רצו חוזרין אצל גדול מאי לאו לא רצו לייבם אלא לחלוץ וקתני חוזרין אצל גדול ושמע מינה חליצת גדול עדיפא
The Gemara suggests a proof for the first opinion: We learned in the mishna: If the younger brothers do not want to consummate the levirate marriage, the court returns to the eldest brother and demands that he at least perform ḥalitza. The Gemara suggests: What, is it not that the other brothers did not want to consummate the levirate marriage but are willing to perform ḥalitza? And yet the mishna teaches: The court returns to the eldest brother so that he can perform ḥalitza. If so, conclude from here that the ḥalitza of the eldest brother is preferable.
לא לא רצו לא לחלוץ ולא לייבם דכוותיה גבי גדול לא רצה לא לחלוץ ולא לייבם אלא אמאי חוזרין אצל גדול למכפייה לכפייהו לדידהו כיון דמצוה עליה דידיה רמיא לדידיה כייפינן
The Gemara rejects the proof: No, the mishna might concern a case where the other brothers did not want either to perform ḥalitza or to consummate the levirate marriage, and it is only because they are unwilling to do either that the court returns to the eldest brother. The Gemara asks: If this is so, then in the corresponding situation in which the mishna states: The eldest brother does not want to do so, the case must be that he does not want either to perform ḥalitza or to consummate the levirate marriage. But if so, when the younger brothers also refuse, why should the court invest the extra effort to return to the eldest brother to force him to fulfill his duty? Let the court force them, i.e., the younger brothers, to fulfill their duty. The Gemara responds: Since the mitzva is incumbent upon the eldest brother ab initio, it is he who is forced.
תא שמע תלה בגדול עד שיבא ממדינת הים אין שומעין לו ואי סלקא דעתך חליצת גדול עדיפא אמאי אין שומעין לו נינטר דלמא אתי וחליץ
Come and hear another proof from the mishna: If a younger brother makes his decision dependent upon the eldest brother, who is currently unavailable, suggesting that the yevama wait until he comes from overseas, the court does not listen to him. And if it enters your mind to suggest that the ḥalitza of the eldest brother is preferable, why doesn’t the court listen to him? Let the court wait, as perhaps he will come and perform ḥalitza. Rather, it would appear that the mishna assumes that with regard to performing ḥalitza, all the brothers are equivalent.
ולטעמיך בקטן עד שיגדיל אין שומעין לו אמאי נינטר דלמא גדיל ומייבם (אי נמי אתי איהו ומייבמה) אלא כל שהויי מצוה לא שהינן
The Gemara challenges this: But even according to your reasoning, you certainly agree that the possibility of consummating the levirate marriage is always preferable. If so, what about the previous case in the mishna, where the eldest brother asks to wait until his brother who is a minor will mature? In that case as well the mishna rules: The court does not listen to him; but why shouldn’t the court listen to him? Let the court wait, as perhaps he will come and consummate the levirate marriage. Alternatively, in the case where the eldest brother is overseas, let the court wait, as perhaps he will come and consummate the levirate marriage with her. Rather, it is clear that the reason for the mishna’s ruling is that we do not delay the performance of a mitzva. Therefore, if one of the brothers is currently unable to perform the mitzva, he is not considered at all. Consequently, no proof can be derived from the mishna.
תנן התם מצות יבום קודמת למצות חליצה בראשונה שהיו מתכוונין לשם מצוה עכשו שאין מתכוונין לשם מצוה אמרו מצות חליצה קודמת למצות יבום
§ We learned in a mishna there (Bekhorot 13a): The mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza; this applied initially, when yevamin would have intent for the sake of fulfilling the mitzva. Now, that they do not have intent for the sake of fulfilling the mitzva, the Sages say: The mitzva of performing ḥalitza takes precedence over the mitzva of consummating the levirate marriage.
אמר רב אין כופין כי אתו לקמיה דרב אמר להו אי בעית חלוץ אי בעית ייבם בדידך תלא רחמנא ואם לא יחפוץ האיש הא אם חפץ אי בעי חליץ אי בעי ייבם
Rav said: Nevertheless, the court does not force a yavam to perform ḥalitza, and if he wishes it is still permitted to consummate the levirate marriage. The Gemara relates: When a yavam and a yevama would come before Rav, he would say to them: If you want, perform ḥalitza, and if you want, consummate the levirate marriage, as the Merciful One makes the matter dependent upon your will, as it is stated: “And if the man does not wish to take his yevama” (Deuteronomy 25:7) then he should perform ḥalitza. This implies that the Torah requires him to perform ḥalitza only if he does not wish to consummate the levirate marriage, but if he wishes to do so, then the matter is dependent upon him, and if he wants, he performs ḥalitza, or if he wants, he consummates the levirate marriage.
ואף רב יהודה סבר אין כופין מדאתקין רב יהודה בגיטא דחליצה איך פלונית בת פלוני אקרבת ית פלוני יבמה קדמנא לבי דינא ואשתמודעינהו דאחוה דמיתנא מאבא ניהו ואמרי ליה אי צבית ליבם יבם ואי לא איטלע לה רגליך דימינא
The Gemara notes: And even Rav Yehuda holds that the court does not force a yavam to perform ḥalitza if he wishes to consummate the levirate marriage. This is apparent from the fact that Rav Yehuda enacted in his court that the following formulation should be used in the bill of ḥalitza: That so-and-so, daughter of so-and-so, brought so-and-so, her yavam, before the court; and we identified him, that he was indeed the paternal brother of the deceased, and we said to him: If you desire to consummate the levirate marriage, then consummate the levirate marriage, and if not, extend your right foot toward your yevama so that she may perform ḥalitza by removing your shoe.
ואיטלע לה רגלא דימינא ושרת סיניה מעל רגלוהי וירקת באנפוהי רוקא דמתחזיא לבי דינא על ארעא
The bill of ḥalitza would continue with the account of what transpired: And he extended [itla] his right foot toward her and she removed his shoe from upon his foot and she spat toward his face spittle, which was visible to the court, and which landed upon the ground.
ורבי חייא בר אויא מסיים בה משמיה דרב יהודה ואקרינהו מה דכתיב בספר אורייתא דמשה
And Rabbi Ḥiyya bar Avya in the name of Rav Yehuda would conclude the formulation of the bill of ḥalitza with an additional sentence: And we dictated to the yavam that which is written in the book of the Torah of Moses, i.e., those declarations that the yavam and the yevama are required to make.
אשתמודעינהו פליגי בה רב אחא ורבינא חד אמר בעדים וחד אמר אפילו קרוב אפילו אשה והלכתא גלויי מילתא בעלמא הוא ואפילו קרוב ואפילו אשה:
The Gemara clarifies the intention of the phrase: And we identified him as the brother of the deceased. Rav Aḥa and Ravina disagree concerning this phrase: One said that this identification must be made through legally valid witnesses, and the other one said that even the testimony of a relative and even the testimony a woman is accepted in this case. The Gemara concludes: And the halakha is that the identification of the brother is considered to be merely revealing the facts of the matter, and therefore, even a relative and even a woman may tender this information.
בראשונה שהיו מתכוונין לשם מצוה מצות יבום קודמת למצות חליצה ועכשיו שאין מתכוונין לשם מצוה אמרו מצות חליצה קודמת למצות יבום
The Gemara paraphrases the mishna from tractate Bekhorot: Initially, when yevamin would have intent for the sake of fulfilling the mitzva of consummating the levirate marriage, the mitzva of consummating the levirate marriage took precedence over the mitzva of performing ḥalitza. And now that they do not have intent for the sake of fulfilling the mitzva, the Sages say: The mitzva of performing ḥalitza takes precedence over the mitzva of consummating the levirate marriage.
אמר רמי בר חמא אמר רבי יצחק חזרו לומר מצות יבום קודמת למצות חליצה אמר ליה רב נחמן בר יצחק אכשור דרי
Rami bar Ḥama said that Rabbi Yitzḥak said: In later generations they went back to once again saying that the mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza. Rav Naḥman bar Yitzḥak said to him in wonderment: Could it be that the later generations improved their spiritual level and now intend to consummate the levirate marriage solely for sake of fulfilling the mitzva?
מעיקרא סברי לה כאבא שאול ולבסוף סברי לה כרבנן
The Gemara explains that this does not mean that the later generations improved themselves; rather, initially they held in accordance with the opinion of Abba Shaul, and so the mitzva of performing ḥalitza took precedence, and in the end they held in accordance with the opinion of the Rabbis, and so the mitzva of consummating the levirate marriage took precedence.
דתניא אבא שאול אומר הכונס את יבמתו לשם נוי ולשום אישות ולשום דבר אחר כאילו פוגע בערוה וקרוב אני בעיני להיות הולד ממזר וחכמים אומרים יבמה יבא עליה מכל מקום
As it is taught in a baraita: Abba Shaul says that one who consummates a levirate marriage with his yevama for the sake of her beauty, or for the sake of marital relations, or for the sake of another matter, e.g., he wishes to inherit her husband’s estate, it is considered as though he encountered a forbidden relation, and I am inclined to view the offspring born from such a union as a mamzer. Since the prohibition against engaging in relations with one’s brother’s wife is overridden only for the sake of fulfilling the mitzva of consummating the levirate marriage, when one does not have the intention to fulfill that mitzva, the baseline prohibition applies, and so any offspring from the union will be mamzerim. The Rabbis say: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5), which indicates that he should do so in any case, even if his intentions are not solely for the sake of fulfilling the mitzva.
מאן תנא להא דתנו רבנן יבמה יבא עליה מצוה שבתחלה היתה עליו בכלל היתר נאסרה וחזרה והותרה יכול תחזור להתירה הראשון תלמוד לומר יבמה יבא עליה מצוה
The Gemara asks: Who is the tanna who taught the following baraita that the Sages taught: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5); this is to be considered a mitzva, as initially, before she was married to his brother, she was among all other women who are permitted to him, and then when she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would revert to her original permitted status; therefore, the verse states: “Her brother-in-law will have intercourse with her” to teach that it is in fact a mitzva to do so.
מאן תנא אמר רבי יצחק בר אבדימי אבא שאול היא והכי קאמר יבמה יבא עליה מצוה שבתחלה היתה עליו בכלל היתר רצה לשם נוי כונסה רצה לשום אישות כונסה
Who is the tanna who taught this baraita? Rav Yitzḥak bar Avdimi said: It is Abba Shaul, and this is what the baraita is saying: “Her brother-in-law will have intercourse with her” teaches that it is permitted to engage in intercourse with her only when his intention is to fulfill a mitzva, as initially, before she was married to his brother, she was among all other women who are permitted to him, and so, if he wished, then even for the sake of her beauty he was permitted to marry her, or similarly, if he wished, then even for the sake of marital relations he was permitted to marry her.
נאסרה חזרה והותרה יכול תחזור להתירה הראשון תלמוד לומר יבמה יבא עליה למצוה
When she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would fully revert to her original permitted status; therefore, the verse states: “Her brother-in-law will have intercourse with her” to teach that he is permitted to marry her only when his intention is for the mitzva.
רבא אמר אפילו תימא רבנן והכי קאמר יבמה יבא עליה מצוה שבתחלה היתה בכלל היתר רצה כונסה רצה אינו כונסה
Rava said: You can even say that the baraita is in accordance with the Rabbis, and this is what the baraita is saying: “Her brother-in-law will have intercourse with her” indicates that it is a mitzva to consummate the levirate marriage, as initially, before she was married to his brother, she was among all other women who are permitted to him, and so if he wished, he was permitted to marry her, or if he wished, he was permitted to choose not to marry her.
נאסרה חזרה והותרה יכול תחזור להתירה הראשון רצה כונסה רצה אינו כונסה רצה אינו כונסה
When she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would fully revert to her original permitted status, so that if he wishes, he may marry her, or if he wishes, he may choose not to marry her.
הא אגידה ביה בכדי תיפוק אלא אימא רצה כונסה רצה חולץ לה תלמוד לומר יבמה יבא עליה מצוה
The Gemara interjects that the logic of this last statement seems implausible: Does he really have the option to do as he wishes? Isn’t she bound to him with a levirate bond? Could it be that she will be released from that bond without doing anything? Rather, emend the previous argument and instead say: One might think that if he wishes, he may marry her, or if he wishes not to do so, he performs ḥalitza with her. Therefore, the verse states: “Her brother-in-law will have intercourse with her,” to teach that it is now a mitzva to consummate the marriage, and doing so is preferable to performing ḥalitza.
אימא רישא מצות תאכל במקום קדוש מצוה
The baraita under discussion also presents another case that follows a similar model of initially being permitted, then prohibited, and then once again permitted. The Gemara analyzes the explanations of Rav Yitzḥak and Rava based on that clause of the baraita: Say the first clause and try to explain it in a way consistent with the various explanations of the latter clause: The Torah states concerning the meal-offerings eaten by the priests: “It shall be eaten unleavened in a sacred place” (Leviticus 6:9); this indicates that doing so is a mitzva,
