Yevamot 79
תְּרֵיסַר יַרְחֵי שַׁתָּא, וְלָא דַּרְכֵּיהּ לְמִסְפְּדֵיהּ.
the twelve months of the year of mourning, i.e., several years have elapsed since the twelve-month mourning period for Saul, and it is not the proper way to eulogize after such a long time.
נְתִינִים נִיקְרִינְהוּ וּנְפַיְּיסִינְהוּ: ״וַיִּקְרָא הַמֶּלֶךְ לַגִּבְעוֹנִים וַיֹּאמֶר אֲלֵיהֶם. מָה אֶעֱשֶׂה לָכֶם וּבַמָּה אֲכַפֵּר וּבָרְכוּ אֶת נַחֲלַת ה׳. וַיֹּאמְרוּ לוֹ הַגִּבְעוֹנִים אֵין לָנוּ כֶּסֶף וְזָהָב עִם שָׁאוּל וְעִם בֵּיתוֹ וְאֵין לָנוּ אִישׁ וְגוֹ׳ יֻתַּן לָנוּ שִׁבְעָה אֲנָשִׁים מִבָּנָיו וְהוֹקַעֲנוּם לַה׳ וְגוֹ׳״, פַּיְּיסִינְהוּ וְלָא מִיפַּיְיסוּ.
As for the Gibeonites, let us call them and appease them. Consequently, the verse states: “And the king called the Gibeonites and said to them…What shall I do for you, and with what shall I make atonement that you may bless the inheritance of the Lord? And the Gibeonites said to him: It is not a matter of silver or gold between us and Saul or his house; neither is it for us to put any man to death in Israel…Let seven men of his sons be delivered to us, and we will hang them up to the Lord…” (II Samuel 21:1–6). He tried to appease them in other ways, but they would not be appeased.
אָמַר, שְׁלֹשָׁה סִימָנִים יֵשׁ בְּאוּמָּה זוֹ: הָרַחְמָנִים, וְהַבַּיְישָׁנִין, וְגוֹמְלֵי חֲסָדִים. רַחְמָנִים — דִּכְתִיב: ״וְנָתַן לְךָ רַחֲמִים וְרִחַמְךָ וְהִרְבֶּךָ״. בַּיְישָׁנִין — דִּכְתִיב: ״בַּעֲבוּר תִּהְיֶה יִרְאָתוֹ עַל פְּנֵיכֶם״. גּוֹמְלֵי חֲסָדִים — דִּכְתִיב: ״לְמַעַן אֲשֶׁר יְצַוֶּה אֶת בָּנָיו וְאֶת בֵּיתוֹ וְגוֹ׳״. כֹּל שֶׁיֵּשׁ בּוֹ שְׁלֹשָׁה סִימָנִים הַלָּלוּ — רָאוּי לְהִדָּבֵק בְּאוּמָּה זוֹ.
David said: There are three distinguishing marks of this nation, the Jewish people. They are merciful, they are shamefaced, and they perform acts of kindness.
They are merciful, as it is written: “And He will give you mercy, and have mercy upon you and multiply you” (Deuteronomy 13:18); not only will God have mercy upon you, but He will bestow the attribute of mercy upon you.
They are shamefaced, as it is written: “And that His fear shall be upon your faces” (Exodus 20:17), and the fear that is on one’s face is his shame.
They perform acts of kindness, as it is written: “For I have known him, to the end that he may command his children and his household after him, that they may keep the way of the Lord, to practice righteousness and justice” (Genesis 18:19), i.e., to perform acts of kindness.
Whoever has these three distinguishing marks is fit to cleave to this nation. Those who lack these qualities, however, are unfit to be part of the Jewish people. When David saw the cruelty of the Gibeonites, he decreed that they may never enter into the congregation of Israel.
״וַיִּקַּח הַמֶּלֶךְ אֶת שְׁנֵי בְּנֵי רִצְפָּה בַת אַיָּה אֲשֶׁר יָלְדָה לְשָׁאוּל אֶת אַרְמֹנִי וְאֶת מְפִבֹשֶׁת וְאֶת חֲמֵשֶׁת בְּנֵי מִיכַל בַּת שָׁאוּל אֲשֶׁר יָלְדָה לְעַדְרִיאֵל בֶּן בַּרְזִילַּי הַמְּחֹלָתִי״. מַאי שְׁנָא הָנֵי? אָמַר רַב הוּנָא: הֶעֱבִירוּם לִפְנֵי אָרוֹן, כֹּל שֶׁאָרוֹן קוֹלְטוֹ — לְמִיתָה, כֹּל שֶׁאֵין אָרוֹן קוֹלְטוֹ — לְחַיִּים.
The Gemara continues with its understanding of the incident: “And the king took the two sons of Rizpah, daughter of Aiah, whom she bore unto Saul, Armoni and Mephibosheth, and the five sons of Michal, daughter of Saul, whom she bore to Adriel the son of Barzillai the Meholathite” (II Samuel 21:8). The Gemara asks: What is different about these sons that David chose them from among all the descendants of Saul? Rav Huna said: He passed all of Saul’s descendants before the Ark of the Covenant. Whoever was held back by the Ark, so that he could not move on, was condemned to death; whoever was not held back by the Ark was set apart for life.
מֵתִיב רַב חָנָא בַּר קַטִּינָא: ״וַיַּחְמֹל הַמֶּלֶךְ עַל מְפִבֹשֶׁת בֶּן יְהוֹנָתָן בֶּן שָׁאוּל״ — שֶׁלֹּא הֶעֱבִירוֹ.
Rav Ḥana bar Ketina raised an objection: The verse states: “And the king had pity on Mephibosheth, son of Jonathan, son of Saul, because of the Lord’s oath that was between them, between David and Jonathan, son of Saul” (II Samuel 21:7). If the seven men were condemned by the Ark, how did the king’s pity affect their sentence? The Gemara answers: It means that he did not pass Mephibosheth before the Ark at all, so that he would not be in danger of being held back at all.
וְכִי מַשּׂוֹא פָּנִים יֵשׁ בַּדָּבָר? אֶלָּא: שֶׁהֶעֱבִירוֹ וּקְלָטוֹ, וּבִקֵּשׁ עָלָיו רַחֲמִים, וּפְלָטוֹ. וְאַכַּתִּי: מַשּׂוֹא פָּנִים יֵשׁ בַּדָּבָר? אֶלָּא, שֶׁבִּקֵּשׁ רַחֲמִים שֶׁלֹּא יִקְלְטֶנּוּ הָאָרוֹן.
The Gemara questions this behavior: May favoritism be shown in this matter? Once the decision was placed in the hand of Heaven, how could David have intervened in matters of life and death and not pass Mephibosheth before the Ark? Rather, what happened was that David passed Mephibosheth before the Ark and the Ark held him back, but David immediately asked for mercy on his behalf, and the Ark released him. The Gemara asks: But the difficulty still remains: May favoritism be shown in this matter? Once the Ark condemned Mephibosheth to death, how could David have intervened so that another would have to die in his place? Rather, David asked for mercy on his behalf, that the Ark should not hold him back and performed no other action.
וְהָא כְּתִיב: ״לֹא יוּמְתוּ אָבוֹת עַל בָּנִים וְגוֹ׳״? אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: מוּטָב שֶׁתֵּעָקֵר אוֹת אַחַת מִן הַתּוֹרָה, וְאַל יִתְחַלֵּל שֵׁם שָׁמַיִם בְּפַרְהֶסְיָא.
The Gemara raises a difficulty with regard to the story as related by the Bible: But isn’t it written: “The fathers shall not be put to death for the children; neither shall the children be put to death for the fathers” (Deuteronomy 24:16)? As Saul’s sons had not sinned, why were they put to death? Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: It is better that one letter and one mitzva be uprooted from the Torah in this manner and thereby the name of Heaven not be desecrated in public [parhesya]. The killing of the Gibeonites by the Jewish people constituted a desecration of God’s name. In order to repair the damage, David acquiesced to the Gibeonites’ demands, even though they contradicted Torah law.
״וַתִּקַּח רִצְפָּה בַת אַיָּה אֶת הַשַּׂק וַתַּטֵּהוּ לָהּ אֶל הַצּוּר מִתְּחִלַּת קָצִיר עַד נִתַּךְ מַיִם עֲלֵיהֶם מִן הַשָּׁמָיִם וְלֹא נָתְנָה עוֹף הַשָּׁמַיִם לָנוּחַ עֲלֵיהֶם יוֹמָם וְחַיַּת הַשָּׂדֶה לַיְלָה״. וְהָא כְּתִיב: ״לֹא תָלִין נִבְלָתוֹ עַל הָעֵץ״!
The Gemara continues with its analysis of the incident. The verse states: “And Rizpah, daughter of Aiah, took sackcloth and spread it for her upon the rock, from the beginning of harvest until water was poured upon them from heaven; and she allowed neither the birds of the air to rest on them by day, nor the beasts of the field by night” (II Samuel 21:10). The Gemara raises a difficulty: How could they have left Saul’s executed sons unburied all that time? Isn’t it written: “His body shall not remain all night upon the tree; but you shall surely bury him the same day” (Deuteronomy 21:23)?
אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי שִׁמְעוֹן בֶּן יְהוֹצָדָק: מוּטָב שֶׁתֵּעָקֵר אוֹת אַחַת מִן הַתּוֹרָה, וְיִתְקַדֵּשׁ שֵׁם שָׁמַיִם בְּפַרְהֶסְיָא. שֶׁהָיוּ עוֹבְרִים וְשָׁבִים אוֹמְרִים: מָה טִיבָן שֶׁל אֵלּוּ? הַלָּלוּ בְּנֵי מְלָכִים הֵם. וּמָה עָשׂוּ? פָּשְׁטוּ יְדֵיהֶם בְּגֵרִים גְּרוּרִים. אָמְרוּ: אֵין לְךָ אוּמָּה שֶׁרְאוּיָה לְהִדָּבֵק בָּהּ כָּזוֹ. וּמָה בְּנֵי מְלָכִים כָּךְ — בְּנֵי הֶדְיוֹטוֹת עַל אַחַת כַּמָּה וְכַמָּה! וּמָה גֵּרִים גְּרוּרִים כָּךְ — יִשְׂרָאֵל עַל אַחַת כַּמָּה וְכַמָּה!
Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yehotzadak: It is better that one letter be uprooted from the Torah and thereby the name of Heaven be sanctified in public. How so? As the gentile passersby would say: What is the nature of these people who have been left hanging here for so long? They were told that these are sons of kings. And what did they do to deserve such a fate? They had laid their hands upon and caused harm to calculating converts who had converted for personal gain and were never permitted to enter into the congregation. Those passersby said: There is no nation as worthy of cleaving to it as this one. If the sons of kings who harmed converts are treated in this manner, all the more so would the sons of ordinary people [hedyotot] be. And if calculating converts are related to in this way, all the more so would this apply to members of the Jewish people themselves.
מִיָּד נִתּוֹסְפוּ עַל יִשְׂרָאֵל מֵאָה וַחֲמִשִּׁים אֶלֶף, שֶׁנֶּאֱמַר: ״וַיְהִי לִשְׁלֹמֹה שִׁבְעִים אֶלֶף נוֹשֵׂא סַבָּל וּשְׁמֹנִים אֶלֶף חוֹצֵב בָּהָר״. וְדִלְמָא יִשְׂרָאֵל הֲווֹ? לָא סָלְקָא דַּעְתָּךְ, דִּכְתִיב: ״וּמִבְּנֵי יִשְׂרָאֵל לֹא נָתַן שְׁלֹמֹה עָבֶד״.
Immediately, one hundred and fifty thousand converts joined the Jewish people, as it is stated: “And Solomon had seventy thousand that bore burdens and eighty thousand that were hewers in the mountains” (I Kings 5:29), all of whom were converts. The Gemara asks: But perhaps these carriers and hewers were Jews? The Gemara answers: This cannot enter your mind, as it is written: “But of the children of Israel Solomon made no slaves” (I Kings 9:22).
וְדִלְמָא דּוּגְזַר בְּעָלְמָא. אֶלָּא מֵהָכָא: ״וַיִּסְפֹּר שְׁלֹמֹה כׇּל הָאֲנָשִׁים הַגֵּרִים אֲשֶׁר בְּאֶרֶץ יִשְׂרָאֵל [וְגוֹ׳] וַיִּמָּצְאוּ מֵאָה וַחֲמִשִּׁים אֶלֶף [וְגוֹ׳] וַיַּעַשׂ מֵהֶם שִׁבְעִים אֶלֶף (נוֹשֵׂא) סַבָּל וּשְׁמוֹנִים אֶלֶף חוֹצֵב בָּהָר״.
The Gemara raises another difficulty: But from where may it be inferred that these men were slaves? Perhaps they were merely workers employed [dogzar] in the ranks of public service, in which case they could have been born Jews and not converts. Rather, the matter is derived from here: “And Solomon counted all the converted men that were in Eretz Yisrael…and they were found to be one hundred and fifty thousand…and he made seventy thousand of them to bear burdens, and eighty thousand to be hewers in the mountains” (II Chronicles 2:16–17). It is apparent from here that these carriers and hewers were in fact converts. These large numbers of converts had been influenced by the sanctification of God’s name in the wake of the punishment meted out to the descendants of Saul.
וּנְתִינִים דָּוִד גָּזַר עֲלֵיהֶם? מֹשֶׁה גָּזַר עֲלֵיהֶם, דִּכְתִיב: ״מֵחוֹטֵב עֵצֶיךָ עַד שׁוֹאֵב מֵימֶיךָ״! מֹשֶׁה גְּזַר לְהָהוּא דָּרָא, דָּוִד גְּזַר לְכוּלֵּי דָּרֵא.
The Gemara returns to the main issue under discussion. As for the Gibeonites, was it David who issued a decree against them that they may not enter the congregation? Wasn’t it Moses who issued a decree against them, as it is written: “From the hewer of your wood to the drawer of your water” (Deuteronomy 29:10), which indicates that there was a distinct class of wood hewers and water drawers already in the time of Moses. This class must have been composed of insincere converts who constituted a separate group unto themselves, apart from the rest of the Jewish people. The Gemara answers: Moses issued a decree only with regard to that generation that they must remain separate, whereas David decreed for all generations.
וְאַכַּתִּי יְהוֹשֻׁעַ גְּזַר עֲלַיְיהוּ, דִּכְתִיב: ״וַיִּתְּנֵם יְהוֹשֻׁעַ בַּיּוֹם הַהוּא חוֹטְבֵי עֵצִים וְשׁוֹאֲבֵי מַיִם לָעֵדָה וּלְמִזְבַּח ה׳״! יְהוֹשֻׁעַ גָּזַר בִּזְמַן שֶׁבֵּית הַמִּקְדָּשׁ קַיָּים, דָּוִד גָּזַר בִּזְמַן שֶׁאֵין בֵּית הַמִּקְדָּשׁ קַיָּים.
The Gemara raises another difficulty: But still, it was Joshua who issued a decree against the Gibeonites, as it is written: “And Joshua made them that day hewers of wood and drawers of water, for the congregation and for the altar of the Lord” (Joshua 9:27). The Gemara answers: Joshua issued a decree for the period when the Temple is standing, as indicated by the phrase “for the altar of the Lord,” whereas David issued a decree even for the period when the Temple is not standing.
בִּימֵי רַבִּי בִּקְּשׁוּ לְהַתִּיר נְתִינִים. אָמַר לָהֶם רַבִּי: חֶלְקֵנוּ נַתִּיר, חֵלֶק מִזְבֵּחַ מִי יַתִּיר?
It is related that in the days of Rabbi Yehuda HaNasi the Sages sought to permit the Gibeonites and treat them like Jews in all regards, thereby allowing them to enter into the congregation. Rabbi Yehuda HaNasi said to them: Even if we permit our share and say that the court nullifies the Jewish people’s right to enslave the Gibeonites, and so they should be treated like emancipated slaves, who can permit the altar’s share? Do they not belong to the Temple and the altar as well?
וּפְלִיגָא דְּרַבִּי חִיָּיא בַּר אַבָּא. דְּאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: חֵלֶק עֵדָה — לְעוֹלָם אָסוּר, חֵלֶק מִזְבֵּחַ, בִּזְמַן שֶׁבֵּית הַמִּקְדָּשׁ קַיָּים — אָסוּר, אֵין בֵּית הַמִּקְדָּשׁ קַיָּים — שְׁרֵי.
The Gemara comments: And Rabbi Yehuda HaNasi disagrees with the teaching of Rabbi Ḥiyya bar Abba. As Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: The share in the enslavement of the Gibeonites that belongs to the congregation of Israel is forbidden forever and can never be permitted. However, with regard to the share belonging to the altar, when the Temple is standing it is forbidden, but when the Temple is not standing it is permitted.
מַתְנִי׳ אָמַר רַבִּי יְהוֹשֻׁעַ: שָׁמַעְתִּי שֶׁהַסָּרִיס חוֹלֵץ וְחוֹלְצִין לְאִשְׁתּוֹ, וְהַסָּרִיס לֹא חוֹלֵץ וְלֹא חוֹלְצִין לְאִשְׁתּוֹ, וְאֵין לִי לְפָרֵשׁ.
MISHNA: Rabbi Yehoshua said: I heard two rulings from my teachers. One ruling is that a eunuch performs ḥalitza with his yevama, and his brothers perform ḥalitza with his wife, and the other ruling is that a eunuch does not perform ḥalitza with his yevama, and his brothers do not perform ḥalitza with his wife. And I cannot explain these two rulings, as I do not remember the circumstances to which each ruling applies.
אָמַר רַבִּי עֲקִיבָא, אֲנִי אֲפָרֵשׁ: סְרִיס אָדָם — חוֹלֵץ וְחוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁהָיְתָה לוֹ שְׁעַת הַכּוֹשֶׁר. סְרִיס חַמָּה — לֹא חוֹלֵץ וְלֹא חוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁלֹּא הָיְתָה לוֹ שְׁעַת הַכּוֹשֶׁר.
Rabbi Akiva said: I will explain. A eunuch caused by man, i.e., one who became emasculated after birth, performs ḥalitza with his yevama and his brothers perform ḥalitza with his wife, because he had an hour of fitness, a time when he was fertile. On the other hand, a eunuch by natural causes, i.e., who was entirely lacking in sexual capacity from birth, does not perform ḥalitza with his yevama and his brothers do not perform ḥalitza with his wife, because he did not have an hour of fitness, as he never had the potential to father children.
רַבִּי אֱלִיעֶזֶר אוֹמֵר: לֹא כִי, אֶלָּא: סְרִיס חַמָּה — חוֹלֵץ וְחוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁיֵּשׁ לוֹ רְפוּאָה. סְרִיס אָדָם — לֹא חוֹלֵץ וְלֹא חוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁאֵין לוֹ רְפוּאָה.
Rabbi Eliezer says: No; rather, the opposite is the case: A eunuch by natural causes performs ḥalitza with his yevama and his brothers perform ḥalitza with his wife because he can be cured, whereas a eunuch caused by man does not perform ḥalitza with his yevama and his brothers do not perform ḥalitza with his wife because he cannot be cured.
הֵעִיד רַבִּי יְהוֹשֻׁעַ בֶּן בְּתֵירָא עַל בֶּן מְגוּסַת שֶׁהָיָה בִּירוּשָׁלַיִם סְרִיס אָדָם, וְיִבְּמוּ אֶת אִשְׁתּוֹ, לְקַיֵּים דִּבְרֵי רַבִּי עֲקִיבָא.
Rabbi Yehoshua ben Beteira testified about a man named ben Megusat, who lived in Jerusalem and was a eunuch caused by man, that his brothers nevertheless entered into levirate marriage with his wife, in order to fulfill and confirm the statement of Rabbi Akiva.
הַסָּרִיס — לֹא חוֹלֵץ וְלֹא מְיַיבֵּם, וְכֵן אַיְילוֹנִית — לֹא חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת.
A sexually underdeveloped man does not perform ḥalitza or enter into levirate marriage with his yevama. And similarly, a sexually underdeveloped woman [aylonit], who is incapable of bearing children, does not perform ḥalitza or enter into levirate marriage with her yavam.
הַסָּרִיס שֶׁחָלַץ לִיבִמְתּוֹ — לֹא פְּסָלָהּ. בְּעָלָהּ — פְּסָלָהּ, מִפְּנֵי שֶׁהִיא בְּעִילַת זְנוּת. וְכֵן אַיְילוֹנִית שֶׁחָלְצוּ לָהּ אַחִין — לֹא פְּסָלוּהָ. בְּעָלוּהָ — פְּסָלוּהָ, מִפְּנֵי שֶׁבְּעִילָתָהּ בְּעִילַת זְנוּת.
If a sexually underdeveloped man performed ḥalitza with his yevama, he has not thereby disqualified her from marrying into the priesthood, as his ḥalitza is invalid. However, if he had intercourse with her, he has disqualified her. This is because it is considered licentious sexual intercourse, since such intercourse does not fulfill the mitzva of levirate marriage and is therefore categorized as forbidden relations with one’s sister-in-law. And similarly, with regard to a sexually underdeveloped woman, if one of the brothers performed ḥalitza with her he has not thereby disqualified her from marrying into the priesthood. However, if he had intercourse with her, he has disqualified her because the intercourse is considered licentious sexual intercourse.
גְּמָ׳ מִכְּדִי שָׁמְעִינַן לְרַבִּי עֲקִיבָא דְּאָמַר חַיָּיבֵי לָאוִין כְּחַיָּיבֵי כָּרֵיתוֹת דָּמוּ, וְחַיָּיבֵי כָּרֵיתוֹת לָאו בְּנֵי חֲלִיצָה וְיִיבּוּם נִינְהוּ!
GEMARA: Now, we learned that Rabbi Akiva said: Those liable for violating a prohibition are like those liable to receive karet with regard to the validity of their marriage and all its ramifications, and those liable to receive karet are not eligible to perform ḥalitza or levirate marriage. A eunuch caused by man has the status of a man with crushed testicles, and is therefore prohibited by a standard negative mitzva from marrying a Jewish woman. If he violated the prohibition and married her, his marriage is invalid according to Rabbi Akiva, just as if he had married a woman who is forbidden to him by a prohibition punishable by karet. Why, then, should his ḥalitza be valid?
אָמַר רַבִּי אַמֵּי: הָכָא בְּמַאי עָסְקִינַן — כְּגוֹן שֶׁנָּשָׂא אָחִיו גִּיּוֹרֶת, וְרַבִּי עֲקִיבָא סָבַר לַהּ כְּרַבִּי יוֹסֵי, דְּאָמַר: קְהַל גֵּרִים — לָא אִקְּרִי קָהָל.
Rabbi Ami said: With what are we dealing here? We are dealing with a case where the eunuch’s brother had married a convert, and Rabbi Akiva holds in accordance with the opinion of Rabbi Yosei, who said that the congregation of converts is not called a congregation of the Lord. Consequently, it is permitted even for those for whom it is prohibited to enter into the congregation, e.g., a eunuch, to marry converts.
אִי הָכִי, יַבּוֹמֵי נָמֵי מְיַיבֵּם! אִין הָכִי נָמֵי, וְאַיְּידֵי דְּאָמַר רַבִּי יְהוֹשֻׁעַ חוֹלֵץ, אָמַר אִיהוּ נָמֵי חוֹלֵץ.
The Gemara raises a difficulty: If so, the eunuch should also be able to perform levirate marriage with the convert. The Gemara answers: Yes, it is indeed so, but since Rabbi Yehoshua said that a eunuch performs ḥalitza with his yevama, Rabbi Akiva as well said that he performs ḥalitza with her, while in fact he may enter into levirate marriage with her if he so chooses.
דַּיְקָא נָמֵי, דְּקָתָנֵי: הֵעִיד רַבִּי יְהוֹשֻׁעַ בֶּן בְּתֵירָא עַל בֶּן מְגוּסַת שֶׁהָיָה בִּירוּשָׁלַיִם סְרִיס אָדָם, וְיִבְּמוּ אֶת אִשְׁתּוֹ לְקַיֵּים דִּבְרֵי רַבִּי עֲקִיבָא. שְׁמַע מִינַּהּ.
The Gemara adds: The language of the mishna is also precise in this regard, as it teaches: Rabbi Yehoshua ben Beteira testified about a man named ben Megusat, who lived in Jerusalem and was a eunuch caused by man, that his brothers entered into levirate marriage with his wife, to fulfill the statement of Rabbi Akiva. This indicates that according to Rabbi Akiva, not only ḥalitza but even levirate marriage is permitted. The Gemara concludes: Learn from this that this is the correct understanding of the mishna.
מֵתִיב רַבָּה: פְּצוּעַ דַּכָּא וּכְרוּת שׇׁפְכָה, סְרִיס אָדָם וְהַזָּקֵן — אוֹ חוֹלְצִין אוֹ מְיַיבְּמִין. כֵּיצַד: מֵתוּ וְלָהֶם נָשִׁים, וְלָהֶם אַחִין, וְעָמְדוּ אַחִין וְעָשׂוּ מַאֲמָר בִּנְשׁוֹתֵיהֶן, וְנָתְנוּ גֵּט, אוֹ שֶׁחָלְצוּ — מַה שֶּׁעָשׂוּ עָשׂוּ, וְאִם בָּעֲלוּ — קָנוּ.
Rabba raised an objection from the following baraita: A man with crushed testicles, and one whose penis has been severed, and a eunuch caused by man, and an elderly man who is no longer capable of fathering children, may either perform ḥalitza or enter into levirate marriage. The baraita clarifies the matter: How so? If these men died and they had wives and they also had brothers, and the brothers proceeded to perform levirate betrothal with their wives, or gave them a bill of divorce, or performed ḥalitza with them, what they did is done, i.e., it is a valid act. And if the brothers had intercourse with the wives, they acquired them in levirate marriage, like any other yevama.
מֵתוּ אַחִין, וְעָמְדוּ הֵן וְעָשׂוּ מַאֲמָר בִּנְשׁוֹתֵיהֶן, וְנָתְנוּ גֵּט אוֹ חָלְצוּ — מַה שֶּׁעָשׂוּ עָשׂוּ. וְאִם בָּעֲלוּ — קָנוּ, וְאָסוּר לְקַיְּימָן, מִשּׁוּם שֶׁנֶּאֱמַר: ״לֹא יָבֹא פְצוּעַ דַּכָּא וּכְרוּת שׇׁפְכָה בִּקְהַל ה׳״, אַלְמָא בְּקָהָל עָסְקִינַן!
If the brothers of these sexually impaired men died, and the sexually impaired men proceeded to perform levirate betrothal with their brothers’ wives, or gave them a bill of divorce, or performed ḥalitza with them, what they did is done, i.e., it is a valid act. And if they had intercourse with their brothers’ wives they acquired them in levirate marriage, but they are prohibited from maintaining them as their wives because it is stated: “A man with crushed testicles or a severed penis shall not enter into the congregation of the Lord” (Deuteronomy 23:2). Apparently, we are dealing with a case where the eunuch’s brother had married a woman who is in the congregation of the Lord, i.e., a Jew from birth who is governed by this prohibition, and not a convert.
אֶלָּא אָמַר רַבָּה: כְּגוֹן שֶׁנָּפְלָה לוֹ, וּלְבַסּוֹף נִפְצַע.
Rather, Rabba said that the case here is one where one’s brother died and his yevama happened before him for levirate marriage, and he was injured only afterward. Since the mitzva of levirate marriage had initially applied to him, he performs ḥalitza with her.
אֲמַר לֵיהּ אַבָּיֵי: וְלַיְתֵי אִיסּוּר פָּצוּעַ וְנִידְחֵי עֲשֵׂה דְּיִיבּוּם! מִי לָא תְּנַן, רַבָּן גַּמְלִיאֵל אוֹמֵר: אִם מֵיאֲנָה — מֵיאֲנָה,
Abaye said to him: If so, let the prohibition applying to a man with crushed testicles come and override the positive mitzva of levirate marriage. Didn’t we learn in a mishna (109a) as follows: With regard to a case of two brothers who were married to two sisters, one of whom was a minor married off by her brothers in a marriage valid only by rabbinic decree, and the brother who was married to the adult sister passed away, Rabban Gamliel says: If the minor sister refuses her husband, declaring that she does not desire the marriage, she has refused him. Since the marriage is valid only by rabbinic decree, the girl may terminate it before she reaches the age of twelve by declaring that she does not wish to remain in the marriage, and no bill of divorce is required. In such a case the marriage is nullified retroactively, and so her former husband, the yavam, may perform levirate marriage with her sister.
וְאִם לָאו — תַּמְתִּין עַד שֶׁתַּגְדִּיל, וְתֵצֵא הַלֵּזוּ מִשּׁוּם אֲחוֹת אִשָּׁה. אַלְמָא: אָתֵי אִיסּוּר אֲחוֹת אִשָּׁה וְדָחֵי. הָכָא נָמֵי: נֵיתֵי אִיסּוּר פָּצוּעַ וְנִידְחֵי!
The mishna continues: But if she does not refuse him, the minor must wait and her husband must not have relations with her until she reaches adulthood and their marriage is valid by Torah law, since in the meantime she is forbidden to him as the sister of a woman awaiting levirate marriage with him. At that point, when the minor reaches adulthood, this one, the adult sister, goes out free from the yavam without levirate marriage or ḥalitza as his wife’s sister. Apparently, the prohibition with regard to a wife’s sister comes and overrides the mitzva of levirate marriage that had previously been in effect. Here too, then, let the prohibition applying to a man with crushed testicles come and override the positive mitzva of levirate marriage.
אֶלָּא אָמַר רַב יוֹסֵף: הַאי תַּנָּא — הָךְ תַּנָּא דְּבֵי רַבִּי עֲקִיבָא הִיא, דְּאָמַר: מֵחַיָּיבֵי לָאוִין דִּשְׁאֵר הָוֵי מַמְזֵר, מֵחַיָּיבֵי לָאוִין גְּרִידִי לָא הָוֵי מַמְזֵר.
Rather, Rav Yosef said: This tanna of our mishna is the tanna of the school of Rabbi Akiva, who said that only the child born of a union between those who are liable for violating prohibitions involving incestuous relationships is a mamzer, but the child born of a union between people who are liable for violating ordinary prohibitions is not a mamzer. The prohibition applying to a man with crushed testicles falls into the latter category, and therefore his marriage is valid and he may perform ḥalitza.
אִיקְּרִי כָּאן ״לְהָקִים לְאָחִיו שֵׁם״, וְהָא לָאו בַּר הָכִי הוּא?
The Gemara asks: Why does the mitzva of levirate marriage apply at all to a eunuch? Read here the verse with regard to levirate marriage: “To establish a name for his brother in Israel” (Deuteronomy 25:7), and this one is no longer capable of this, even if previously he had an hour of fitness when he was fertile earlier in his life.
אָמַר רָבָא: אִם כֵּן, אֵין לְךָ אִשָּׁה שֶׁכְּשֵׁרָה לְיַבֵּם, שֶׁלֹּא נַעֲשָׂה בַּעְלָהּ סְרִיס חַמָּה שָׁעָה אַחַת קוֹדֶם לְמִיתָתוֹ!
Rava said: If it is so that anyone who cannot presently father children is exempt from levirate marriage even if he had previously been capable of doing so, there is no instance of a woman who is fit for the yavam, as even if her husband died of natural causes it is impossible that he did not become like a eunuch by natural causes an hour before his death. He had certainly lost his fertility before dying, and therefore he has the status of a eunuch, which means that the mitzva of levirate marriage should not apply in his case at all. Rather, it must be that a man who had previously been capable of fathering children is considered fit for the purposes of levirate marriage.
לְרַבִּי אֱלִיעֶזֶר, פֵּירוּקָא דְרָבָא פִּירְכָא הִיא!
The Gemara comments: According to the opinion of Rabbi Eliezer in the mishna that a eunuch caused by man does not perform ḥalitza and his marriage is invalid even though he had an hour of fitness when he was fertile, Rava’s answer, his proof from the fact that all men on their deathbeds lack sexual capacity, is undoubtedly a refutation.
הָתָם כְּחִישׁוּתָא דְּאַתְחִילָה בֵּיהּ.
The Gemara answers: Rabbi Eliezer maintains that a man who is about to die cannot be compared to a eunuch, as there, he can no longer father children due to the general weakness that begins to take over his body as death approaches, which prevents him from engaging in relations with a woman, but his basic ability to father children remains unimpaired.
הֵיכִי דָּמֵי סְרִיס חַמָּה? אָמַר רַב יִצְחָק בַּר יוֹסֵף אָמַר רַבִּי יוֹחָנָן: כֹּל
The Gemara raises a practical question: What are the circumstances of a eunuch by natural causes? Rav Yitzḥak bar Yosef said that Rabbi Yoḥanan said: Anyone
