Yevamot 90

ואוכלת בגינו תרומה בתרומה דרבנן תא שמע אכל תרומה טמאה משלם חולין טהורים שילם חולין טמאים סומכוס אומר משום רבי מאיר בשוגג תשלומיו תשלומין במזיד אין תשלומיו תשלומין וחכמים אומרים אחד זה ואחד זה תשלומיו תשלומין וחוזר ומשלם חולין טהורין

It was further taught: And she eats teruma on his account. The Gemara explains: This is referring to teruma that applies by rabbinic law, not by Torah law. The Gemara attempts to offer a proof for this claim. Come and hear a baraita: If a non-priest ate ritually impure teruma of a priest, he must pay him with ritually pure, non-sacred produce. In a case where he paid with impure, non-sacred food, Sumakhos says in the name of Rabbi Meir that if he did so unwittingly, his payment is considered payment, but if he acted intentionally, his payment is not payment at all. And the Rabbis say: Both in this case and that one his payment is a valid payment, and the food has the sanctity of teruma, although it is ritually impure, and he must also go back and pay him again with pure, non-sacred food.

והוינן בה במזיד אין תשלומיו תשלומין תבא עליו ברכה דאכל מיניה מידי דלא קחזי ליה בימי טומאתו וקא משלם מידי דקחזי ליה בימי טומאתו

And we discussed this baraita with regard to the following question: Why is it that according to the opinion of Rabbi Meir, when the non-priest pays the priest with ritually impure, ordinary food intentionally, his payment is not considered payment? On the contrary, the non-priest should be blessed, as he ate something of his that is not fit for him even during the priest’s days of impurity, as impure teruma must be burned, and he pays him with impure, ordinary food, which is something that is fit for him during his days of impurity. Admittedly, once he gives it to him, the produce becomes impure teruma, but at the time of his payment the food was available to be eaten.

ואמר רבא ואמרי לה כדי חסורי מיחסרא והכי קתני אכל תרומה טמאה משלם כל דהו אכל תרומה טהורה משלם חולין טהורין שילם חולין טמאים סומכוס אומר משום רבי מאיר בשוגג תשלומיו תשלומין במזיד אין תשלומיו תשלומין וחכמים אומרים בין בשוגג בין במזיד תשלומיו תשלומין וחוזר ומשלם חולין טהורין

And Rava said, and some say this statement unattributed to any particular Sage: The baraita is incomplete, and this is what it is teaching: If he ate ritually impure teruma, he pays with anything, even impure, non-sacred produce. If he ate pure teruma he pays with pure, non-sacred food, and if he paid with impure, non-sacred produce, the Sages disagreed about this case: Sumakhos says in the name of Rabbi Meir: If done unwittingly, his payment is payment; if intentionally, his payment is not payment. And the Rabbis say: Whether unwittingly or intentionally, his payment is payment, and he must go back and pay with pure, non-sacred produce.

והא הכא דמדאורייתא תשלומי מעליא הוי דאי מקדש בהו כהן אשה תפסו לה קידושי ואמור רבנן אין תשלומיו תשלומין וקשרינן אשת איש לעלמא

The Gemara returns to the issue at hand, whether the court can stipulate to uproot something prohibited by Torah law. And here it is a case where by Torah law the produce he gave him is proper payment, and is fully owned by the priest, to the extent that if a priest betroths a woman with them, the betrothal with her is valid. And yet the Sages said, i.e., it is a rabbinic law, according to Sumakhos in the name of Rabbi Meir, that his payment is not payment. And this means that we permit a married woman to all men, as she is betrothed by Torah law but in practice she is treated as an unmarried woman. Evidently, a rabbinical prohibition overrides a betrothal that is effective by Torah law.

מאי אין תשלומיו תשלומין דקאמר רבי מאיר דבעי למיהדר שלומי חולין טהורין אי הכי סומכוס היינו רבנן

The Gemara answers: What is the meaning of the phrase: His payment is not payment, that Rabbi Meir said? It means that he is required to go back and pay with ritually pure, non-sacred produce. However, the food he initially gave is also consecrated. The Gemara asks: If so, the opinion of Sumakhos is the same as that of the Rabbis.

אמר רב אחא בריה דרב איקא קנסו שוגג אטו מזיד איכא בינייהו

The Gemara answers that Rav Aḥa, son of Rav Ika, said: The practical difference between them is whether they decreed against an unwitting sinner due to an intentional sinner. According to Sumakhos, if he unwittingly paid with impure, non-sacred produce his payment is valid and the Sages did not penalize him with a second payment, whereas the Rabbis maintain that even if his sin was accidental he must repay the priest, as the Sages issue the decree in a case of a mistaken transgression due to the case of one who sinned intentionally.

תא שמע דם שנטמא וזרקו בשוגג הורצה במזיד לא הורצה

The Gemara further suggests: Come and hear another proof. With regard to blood that became ritually impure, and a priest sprinkled it on the altar, the following distinction applies: If he did so unwittingly, the offering is accepted. If he sprinkled the blood intentionally, the offering is not accepted.

והא הכא דמדאורייתא ארצויי מרצה דתניא על מה הציץ מרצה על הדם ועל הבשר ועל החלב שנטמא בין בשוגג בין במזיד בין באונס בין ברצון בין ביחיד בין בצבור ואמרי רבנן לא הורצה וקא הדר מעייל חולין לעזרה

And here it is a case where by Torah law the blood effects acceptance, as it is taught in a baraita: For what does the High Priest’s frontplate effect acceptance? For blood, for meat, and for fat that became impure, whether unwittingly or intentionally, whether by unavoidable accident or willingly, whether in the case of an individual offering or an offering of the community. And the Sages said that if a priest sprinkled impure blood intentionally the frontplate does not effect acceptance, and its owner must bring another offering. The Gemara infers: Since he is not obligated to bring this extra offering by Torah law, in essence he subsequently brings in a non-sacred animal to the Temple courtyard.

אמר רבי יוסי בר חנינא מאי לא הורצה דקאמר להתיר בשר באכילה אבל בעלים נתכפרו בו

Rabbi Yosei bar Ḥanina said that there is no proof from here, as what is the meaning of the phrase: Does not effect acceptance, that the tanna of the baraita said? It means that it does not effect acceptance in the sense that it permits the meat of the offering to be eaten. However, the owners themselves attain atonement through it, and they do not have to bring another offering.

סוף סוף קמתעקרא אכילת בשר וכתיב ואכלו אתם אשר כפר בהם מלמד שהכהנים אוכלים ובעלים מתכפרים אמר ליה שב ואל תעשה שאני

The Gemara raises a difficulty: Ultimately, the Torah mitzva of eating the meat of this offering is uprooted, and it is written: “And they shall eat those things with which atonement was made” (Exodus 29:33). This verse teaches that the priests eat the offering and the owner thereby gains atonement. He said to him: The case of sit and refrain from action [shev ve’al ta’aseh] is different. In other words, the Sages can uproot a Torah mitzva by instructing one to sit and refrain from action, i.e., to remain passive and do nothing. They cannot, however, uproot a mitzva by telling him to perform an action.

אמר ליה בעאי לאותובך ערל הזאה

Rav Ḥisda said to Rabba: I wanted to raise a difficulty against you from the halakha of an uncircumcised man. The Sages decreed that one who converts on the eve of Passover may not partake of the Paschal lamb, due to his ritual impurity. According to Beit Hillel, one who separates from the foreskin by being circumcised is ritually impure like one who separates from the grave (Pesaḥim 92a). This is the halakha despite the fact that by Torah law he is obligated to bring the offering. Rav Ḥisda continued: And I also thought of asking from the case of sprinkling the waters of a purification offering for one who became ritually impure through contact with a corpse, as the Sages rendered it prohibited for one who is impure to receive the sprinkling on the eve of Passover that occurred on Shabbat, although this prevents him from partaking of the Paschal lamb.

ואזמל סדין בציצית

And I was likewise going to raise a question from the case of a circumcision knife, which the Sages decreed may not be carried on Shabbat, despite the fact that this entails the neglect of a Torah mitzva. And I also wanted to raise a question from the case of a linen cloak, on which the Sages did not allow one to place ritual fringes made of wool. This is a decree that was issued lest he do the same with a garment worn only at night, which is exempt from fringes, and therefore this would be a mixture of wool and linen that is forbidden, although this means that he is unable to fulfill the mitzva of ritual fringes.

וכבשי עצרת ושופר

And likewise I wanted to mention a difficulty from the case of the lambs sacrificed on Shavuot. When the festival of Shavuot occurs on Shabbat, the Sages rendered it prohibited to sprinkle the blood of its sacrificial lambs if the offerings had not been slaughtered with the proper intention, despite the fact that the sprinkling itself is not prohibited by Torah law. And similarly, there is a difficulty with regard to the halakha of the shofar, which is sounded on Rosh HaShana, and yet the Sages rendered it prohibited for it to be blown on Shabbat, lest one carry it four cubits in the public domain.

ולולב השתא דשנית לן שב ואל תעשה לא מיעקר הוא כולהו נמי שב ואל תעשה נינהו

And finally I wished to raise a difficulty from the case of a lulav, which may not be carried on the first day of Sukkot that occurred on Shabbat, for the same reason the Sages rendered it prohibited to sound the shofar on Rosh HaShana that occurs on Shabbat. However, now that you have resolved for us that an action defined as a case of: Sit and refrain from action, is not considered uprooting, all these are also cases of sit and refrain from action.

תא שמע אליו תשמעון אפילו אומר לך עבור על אחת מכל מצות שבתורה כגון אליהו בהר הכרמל הכל לפי שעה שמע לו

The Gemara suggests: Come and hear another proof. The verse states with regard to a true prophet: “To him you shall listen” (Deuteronomy 18:15). From here it is derived that even if the prophet says to you: Transgress one of the mitzvot of the Torah, for example, as in the case of Elijah at Mount Carmel, who brought an offering to God on that mountain during a period when it was forbidden on pain of karet to sacrifice offerings outside the Temple, with regard to everything that he permits for the requirement of the hour, you must listen to him. This indicates that a Torah mitzva can indeed be uprooted in an active manner.

שאני התם דכתיב אליו תשמעון וליגמר מיניה מיגדר מילתא שאני:

The Gemara answers: There it is different, as it is written: “To him you shall listen,” which means that it is a positive mitzva to obey a prophet, and a positive mitzva overrides a prohibition. The Gemara asks: And let him derive from this case a principle that the Sages have the same power as a prophet. The Gemara answers: Safeguarding a matter is different. Since Elijah acted with the aim of preventing the Jewish people from worshipping idols, it was temporarily permitted for him to override a mitzva, in order to strengthen Torah observance with regard to a particular matter in which the people are lax.

תא שמע בטלו מבוטל דברי רבי רבן שמעון בן גמליאל אומר אינו יכול לא לבטלו ולא להוסיף על תנאו אם כן מה כח בית דין יפה

The Gemara suggests another proof. Come and hear: The Sages rendered it prohibited for a man who has sent a bill of divorce to his wife to cancel it in the presence of a court without her knowledge after he has given the bill of divorce to his messenger but before she gets the document. The prohibition was instituted to prevent a situation where the messenger, who is unaware of the cancellation, gives her the bill of divorce and she marries another man under the mistaken impression that she is divorced. If he proceeded to nullify it regardless, it is nullified; this is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: He cannot nullify or add to its condition in a case where the bill of divorce included a stipulation. For if so, i.e., if he has the ability to cancel the bill of divorce, what good is the power of the court in their decree that one may not do so?

והא הכא דמדאורייתא בטל גט ומשום מה כח בית דין קא שרינן אשת איש לעלמא מאן דמקדש אדעתא דרבנן מקדש ואפקעינהו רבנן לקידושין

The Gemara explains the proof from this source: And here it is a case where by Torah law, the bill of divorce is nullified, and yet due to the reason of: What good is the power of the court, his nullification is ineffective, which means that we permit a married woman to all men. The Gemara answers: The halakhot of marriage afford no proof, as with regard to one who betroths a woman, he betroths on the authorization of the Sages, and in this case the Sages nullified the betrothal, which they can do because their consent was required for the betrothal to be effective in the first place.

אמר ליה רבינא לרב אשי התינח דקדיש בכספא קדיש בביאה מאי איכא למימר שויוה רבנן לבעילתו בעילת זנות

Ravina said to Rav Ashi: This works out well in a case when he betrothed with money, as it can be explained that the Sages declared the money ownerless, thereby negating the betrothal. However, if he betrothed by means of sexual relations, what can be said? The Gemara answers: The Sages equated his relations with this woman with licentious sexual intercourse. Since in this situation as well the acquisition of betrothal is effective only by authorization of the Sages, they have the power to declare it invalid.

תא שמע אמר רבי אלעזר בן יעקב שמעתי שבית דין מכין ועונשין שלא מן התורה ולא לעבור על דברי תורה אלא לעשות סייג לתורה ומעשה באדם אחד שרכב על סוס בשבת בימי יונים והביאוהו לבית דין וסקלוהו לא מפני שראוי לכך אלא שהשעה צריכה לכך

The Gemara cites yet another relevant source. Come and hear, as Rabbi Elazar ben Ya’akov said: I have heard that the reason why the court may administer lashes and punish not by Torah law, i.e., in response to actions for which one is not liable to receive punishment by Torah law, is not so as to transgress matters of Torah, but to establish a safeguard for the Torah. And an example of this is an incident involving a certain person who rode on a horse on Shabbat in the days of the Greeks, an act that is prohibited by rabbinic law, and they brought him to the court and they stoned him as a desecrator of Shabbat. They did so not because he was deserving of this, as riding a horse is not punishable by stoning by Torah law, but because the hour required it, as at that time Jews were negligent with regard to Shabbat observance.

ושוב מעשה באדם אחד שהטיח באשתו תחת התאנה והביאוהו לבית דין והלקוהו לא מפני שראוי לכך אלא שהשעה צריכה לכך מיגדר מילתא שאני:

And again, an incident occurred involving a certain person who cohabited with his own wife under a fig tree in plain view, and they brought him to the court and flogged him, not because this punishment was fitting for him, as it is not prohibited by the Torah for one to engage in relations with his wife wherever he chooses, but because the hour required it, to discourage others from engaging in licentious behavior. This shows that the court can uproot a Torah mitzva even by means of a positive action such as stoning. The Gemara answers: Safeguarding a matter is different. As stated above, the court may uproot a Torah mitzva so as to strengthen Torah observance in general, as was the case with the prophet Elijah.

ולא זה וזה מטמאין לה: מנלן דכתיב כי אם לשארו הקרוב אליו ואמר מר שארו זו אשתו

§ The mishna taught: Neither this one, her first husband, nor that one, her second, may become impure for her, if they were priests. The Gemara asks: From where do we derive this halakha? The Gemara explains that it is written: “But to his relative, who is close to him, for her he may defile himself” (Leviticus 21:2), and the Master said: “His relative” is his wife.

וכתיב לא יטמא בעל בעמיו להחלו יש בעל שמיטמא ויש בעל שאין מיטמא הא כיצד מיטמא הוא לאשתו כשרה ואינו מיטמא לאשתו פסולה:

And it is further written: “He shall not defile himself, a husband among his people, to profane himself” (Leviticus 21:4). It may be inferred from this apparent contradiction between the verses that there is a husband who becomes impure for his wife, and there is a husband who does not become impure. How so? He becomes impure for his fit wife, but he does not become impure for his disqualified wife. Since in the case of the mishna, the woman in question is disqualified with regard to both men, neither of them may become impure for her.

ולא זה וזה זכאין במציאתה וכו׳: טעמא מאי אמור רבנן מציאת אשה לבעלה כי היכי דלא תיהוי ליה איבה הכא תיהוי ליה איבה ואיבה:

§ The mishna further taught: Neither this one nor that one is entitled to her found articles. The Gemara explains: What is the reason that the Sages said that the found object of a wife belongs to her husband? So that he should not harbor enmity toward her, due to her refusal to give him the item she found. Here, however, let him harbor much enmity toward her, as the Sages want him to divorce her.

ובמעשה ידיה: טעמא מאי אמרי רבנן מעשה ידיה לבעלה משום דקאכלה מזוני הכא כיון דמזוני לית לה מעשה ידיה לאו דידיה:

§ And the mishna also taught that neither man is entitled to her earnings. The Gemara explains: What is the reason that the Sages said that a wife’s earnings belong to her husband? Because she eats his food. In this case here, since she does not have rights to his food, her earnings are not his either.

ולא מיפר נדריה: טעמא מאי אמר רחמנא בעל מיפר כדי שלא תתגנה הכא תתגנה ותתגנה:

§ And the mishna further taught that they may not nullify her vows. The Gemara similarly explains: What is the reason that the Merciful One states that a husband may nullify his wife’s vows? So that she should not have to fulfill a vow that will cause her to become repulsive to him, such as refraining from washing or from applying cosmetics. Here, let her be highly repulsive, as the Sages want their relationship to end.

היתה בת ישראל נפסלה מן הכהונה וכו׳:

§ The mishna taught that if she was an Israelite woman, she is disqualified from marrying into the priesthood.