יבמות קיט

יבמות קיט

הָאִשָּׁה שֶׁהָלַךְ בַּעְלָהּ וְצָרָתָהּ לִמְדִינַת הַיָּם, וּבָאוּ וְאָמְרוּ לָהּ: ״מֵת בַּעְלִיךְ״ — לֹא תִּנָּשֵׂא, וְלֹא תִּתְיַיבֵּם עַד שֶׁתֵּדַע שֶׁמָּא מְעוּבֶּרֶת הִיא צָרָתָהּ.

MISHNA: In the case of a woman whose husband and rival wife traveled to a country overseas, and witnesses came and told her: Your husband died, she shall not marry any other man, in case she requires levirate marriage with her brother-in-law, i.e., yavam, in which case she is prohibited from marrying anyone else. And she also shall not enter into levirate marriage until she knows whether she, i.e., her rival wife, is pregnant. If her rival wife bears a child to her late husband, she does not have a levirate bond with her brother-in-law, and she is therefore prohibited from marrying him.

הָיְתָה לָהּ חָמוֹת — אֵינָהּ חוֹשֶׁשֶׁת. יָצְתָה מְלֵיאָה — חוֹשֶׁשֶׁת. רַבִּי יְהוֹשֻׁעַ אוֹמֵר: אֵינָהּ חוֹשֶׁשֶׁת.

If she had a mother-in-law overseas, but her late husband had no brothers, she need not be concerned that a brother to her husband may have been born. But if her mother-in-law departed from her town pregnant, this widow should be concerned that perhaps her late husband now has a brother, with whom she is obligated in levirate marriage. Rabbi Yehoshua says: Even in such a case she need not be concerned and may marry whomever she wishes.

גְּמָ׳ מַאי ״הִיא צָרָתָהּ״? הָא קָא מַשְׁמַע לַן: לְהָא צָרָה הוּא דְּחָיְישִׁינַן, אֲבָל לְצָרָה אַחֲרִיתִי לָא חָיְישִׁינַן.

GEMARA: The Gemara asks: What is implied by the extra word: She, in the expression in the first clause of the mishna: Whether she, i.e., her rival wife, is pregnant? The Gemara answers that it teaches us this: We are concerned about a possible pregnancy of this rival wife who went overseas with her husband, but we are not concerned about the possibility that he married another rival wife overseas and sired a child by her.

לֹא תִּנָּשֵׂא וְלֹא תִּתְיַיבֵּם וְכוּ׳. בִּשְׁלָמָא יַבּוֹמֵי לָא, דְּדִלְמָא מִיעַבְּרָא, וְקָפָגְעָה בְּאֵשֶׁת אָח דְּאוֹרָיְיתָא. אֶלָּא לֹא תִּנָּשֵׂא, אַמַּאי? הַלֵּךְ אַחַר רוֹב נָשִׁים, וְרוֹב נָשִׁים מִתְעַבְּרוֹת וְיוֹלְדוֹת!

It was taught in the mishna: She shall not marry any other man and shall not enter into levirate marriage until she knows whether her rival wife is pregnant. The Gemara asks: Granted, she may not enter into levirate marriage, because perhaps her rival wife is pregnant, and if so, this widow would encounter the Torah prohibition proscribing a brother’s wife. If a child is born to her late husband, levirate marriage is not required and she is prohibited from marrying her brother-in-law. But why should she not marry another man? Follow the majority of women, and as most women become pregnant and give birth, it is probable that her rival wife did have a child.

לֵימָא רַבִּי מֵאִיר הִיא דְּחָיֵישׁ לְמִיעוּטָא?

Shall we say that the mishna follows the opinion of Rabbi Meir, who is concerned about the minority? There is a minority of women who do not give birth, and Rabbi Meir takes this minority into consideration and requires the widow to wait and clarify whether or not she is required to enter into levirate marriage.

אֲפִילּוּ תֵּימָא רַבָּנַן, כִּי אָזְלִי רַבָּנַן בָּתַר רוּבָּא — רוּבָּא דְּאִיתֵיהּ קַמַּן, כְּגוֹן תֵּשַׁע חֲנוּיוֹת וְסַנְהֶדְרִי. אֲבָל רוּבָּא דְּלֵיתֵיהּ קַמַּן — לָא אָזְלִי רַבָּנַן בָּתַר רוּבָּא.

The Gemara rejects this: You can even say that the mishna follows the opinion of the Rabbis. When the Rabbis follow the majority, it is an evident majority, which is extant and can be examined. For example, in a situation where a piece of meat is found in front of nine stores selling kosher meat and one store selling non-kosher meat, if it is not known from which store the meat came, it may be assumed that it came from one of the stores that sells kosher meat. And similarly, the Sanhedrin reaches its decisions by a majority vote of its members. But with regard to a non-evident majority, which is based solely upon general statistical information, such as the assertion that most women become pregnant and give birth, even the Rabbis do not follow the majority.

וַהֲרֵי קָטָן וּקְטַנָּה, דְּרוּבָּא דְּלֵיתָא קַמַּן הִיא, וְאָזְלִי רַבָּנַן בָּתַר רוּבָּא! דְּתַנְיָא: קָטָן וּקְטַנָּה לֹא חוֹלְצִין וְלֹא מְיַיבְּמִין, דִּבְרֵי רַבִּי מֵאִיר. אָמְרוּ לוֹ לְרַבִּי מֵאִיר: יָפֶה אָמַרְתָּ שֶׁאֵין חוֹלְצִין. ״אִישׁ״ כְּתִיב בַּפָּרָשָׁה, וּמַקְּשִׁינַן אִשָּׁה לְאִישׁ. אֶלָּא מָה טַעַם אֵין מְיַיבְּמִין!

The Gemara challenges: But the case of a minor boy or minor girl, as pertains to levirate marriage, is dependent upon a non-evident majority, and nevertheless the Rabbis follow the majority in their ruling, as it is taught in a baraita: A minor boy or minor girl may not perform ḥalitza and may not enter into levirate marriage; this is the statement of Rabbi Meir. The Rabbis said to Rabbi Meir: You have aptly stated that they may not perform ḥalitza, since “man” (Deuteronomy 25:7), i.e., an adult male, is written in the section of the Torah pertaining to ḥalitza. Though an adult female is not mentioned explicitly, we employ an analogy based on juxtaposition of the woman to the man and require that the female involved in ḥalitza be an adult as well. But what is the reason that they may not enter into levirate marriage, about which the Torah’s phraseology does not specifically indicate adults?

אָמַר לָהֶם: קָטָן שֶׁמָּא יִמָּצֵא סָרִיס, קְטַנָּה שֶׁמָּא תִּמָּצֵא אַיְלוֹנִית, וְנִמְצְאוּ פּוֹגְעִים בְּעֶרְוָה. וְרַבָּנַן סָבְרִי: זִיל בָּתַר רוּבָּא דִּקְטַנִּים, וְרוֹב קְטַנִּים לָאו סָרִיסֵי נִינְהוּ. זִיל בָּתַר רוֹב קְטַנּוֹת, וְרוֹב קְטַנּוֹת לָאו אַיְלוֹנִית נִינְהוּ. אֶלָּא, מְחַוַּורְתָּא מַתְנִיתִין רַבִּי מֵאִיר הִיא.

He said to them: I am concerned about the minor boy, lest he be confirmed as a sexually underdeveloped man when he grows up, and I am concerned about the minor girl, lest she be confirmed as an aylonit, a sexually underdeveloped woman, when she grows up. Then levirate marriage would not apply, and they would end up encountering a forbidden relative if they consummated the levirate marriage. And the Rabbis hold: Follow the majority of minor boys, and most minor boys are not sexually underdeveloped when they grow up. Likewise, follow the majority of minor girls, and most minor girls are not in the category of aylonit when they grow up. This indicates that the Rabbis disagree with Rabbi Meir even with regard to a non-evident majority. Rather, it is clear that the mishna is following Rabbi Meir, who is concerned about the minority.

בְּמַאי אוֹקֵימְתָּא כְּרַבִּי מֵאִיר, אֵימָא סֵיפָא: הָיְתָה לָהּ חָמוֹת — אֵינָהּ חוֹשֶׁשֶׁת. אַמַּאי? הַלֵּךְ אַחַר רוֹב נָשִׁים, וְרוֹב נָשִׁים מִתְעַבְּרוֹת וְיוֹלְדוֹת, מִיעוּט מַפִּילוֹת, וְכׇל הַיּוֹלְדוֹת — מֶחֱצָה זְכָרִים וּמֶחֱצָה נְקֵבוֹת. סְמוֹךְ מִיעוּטָא דְמַפִּילוֹת לְמֶחֱצָה נְקֵבוֹת, וְהָווּ לֵיהּ זְכָרִים מִיעוּטָא — וְלֵיחוּשׁ!

The Gemara asks: In what manner did you establish the mishna? You established it in accordance with the opinion of Rabbi Meir. However, say the latter clause: If she had a mother-in-law overseas, she need not be concerned that her mother-in-law may have given birth to another son. Why should she not be concerned about this? Follow the majority of women, and most women become pregnant and give birth. The minority become pregnant and miscarry. And among all women who give birth, half of the children are male and half are female. Therefore, we can join the minority who miscarry to the half who give birth to females, and then the male children born would be only the minority. Nevertheless, if the mishna actually follows Rabbi Meir, who is concerned about minority circumstances, let him be concerned that a yavam might have been born, necessitating a levirate marriage.

דִּלְמָא כֵּיוָן דְּאִיחְזְקָה לַשּׁוּק, לָא חָיֵישׁ. רֵישָׁא דְּאִיחְזַק לְיִיבּוּם — תִּיַּיבַּם!

The Gemara rejects this: Perhaps, since the widow is legally presumed to be permitted to marry a man from the general public, since her husband had no known brothers, Rabbi Meir is not concerned about the minority. The Gemara challenges: If so, in the first clause of the mishna, where the widow is legally presumed to require levirate marriage, as her husband had no children, she should be permitted to enter into levirate marriage without concern that her rival wife might have given birth.

אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: רֵישָׁא דְּאִיסּוּר כָּרֵת — חָשְׁשׁוּ, סֵיפָא דְּאִיסּוּר לָאו — לֹא חָשְׁשׁוּ.

The Gemara answers that Rav Naḥman said that Rabba bar Avuh said: In the first clause of the mishna, which relates to a prohibition proscribing a brother’s wife when levirate marriage does not apply, which bears the punishment of karet, they were concerned about the minority possibility because of the severity of the prohibition. But in the latter clause of the mishna, which relates to an ordinary prohibition, that of a woman whose husband died childless marrying without performing ḥalitza, the prohibition is not so severe. Therefore, they were not concerned about the minority and relied upon the presumption.

אָמַר רָבָא: מִכְּדֵי, הָא דְּאוֹרָיְיתָא וְהָא דְּאוֹרָיְיתָא — מָה לִי אִיסּוּר כָּרֵת מָה לִי אִיסּוּר לָאו?! אֶלָּא אָמַר רָבָא:

Rava said in opposition to this contention: Now since this prohibition is by Torah law and that prohibition is by Torah law, what difference is it to me if it is a prohibition bearing the punishment of karet and what difference is it to me if it is an ordinary prohibition? If both prohibitions are by Torah law there is no justification for distinguishing between a severe prohibition and a minor one! Rather, Rava said that we must reject this contention, and say:

רֵישָׁא, חֲזָקָה לְיִיבּוּם, וְרוּבָּא לַשּׁוּק. וַחֲזָקָה לָא עֲדִיף כִּי רוּבָּא. וְאַיְיתִי מִיעוּטָא דְּמַפִּילוֹת סְמוֹךְ לַחֲזָקָה, וְהָוֵה לֵיהּ פַּלְגָא וּפַלְגָא — לֹא תִּנָּשֵׂא וְלֹא תִּתְיַיבֵּם.

In the first clause of the mishna, the legal presumption is that this widow is obligated to enter into levirate marriage, but in a majority of cases she will actually be permitted to marry a man from the general public, because it is statistically probable that her rival wife had a child. A legal presumption is not as significant as a majority, meaning that the majority carries more weight than the presumption, and she should be permitted to marry immediately. But bring the minority who miscarry into consideration, and join this to the legal presumption, and it becomes similar to an even balance of half and half. Those who miscarry detract from the strength of the majority, causing it to be equal in legal significance to the legal presumption. Therefore, the ruling is that she shall not marry any man who is not her yavam and she shall not enter into levirate marriage either.

סֵיפָא, חֲזָקָה לַשּׁוּק, וְרוּבָּא לַשּׁוּק. וְהָוֵי לֵיהּ זְכָרִים מִיעוּטָא דְמִיעוּטָא, וּמִיעוּטָא דְמִיעוּטָא — לָא חָיֵישׁ רַבִּי מֵאִיר.

However, in the latter clause, the legal presumption is that the widow is permitted to marry a man from the general public, since her late husband had no brothers initially. And in a majority of cases her mother-in-law will not have had another son, and therefore the widow will actually be permitted to marry a man from the general public. Consequently, the possibility that her husband has a brother, necessitating levirate marriage, is not taken into account because it is a minority of a minority, i.e., it is a minority and it contradicts the legal presumption, and even Rabbi Meir is not concerned about a minority of a minority.

לֹא תִּנָּשֵׂא וְלֹא תִּתְיַיבֵּם וְכוּ׳. וּלְעוֹלָם!

§ It was taught in the mishna that in the case of a woman whose husband and rival wife went overseas and then her husband died, she shall not marry and shall not enter into levirate marriage until she knows whether her rival wife is pregnant. The Gemara asks: But must she wait indefinitely? She should be permitted to perform ḥalitza on account of the uncertainty and then marry another man.

אָמַר זְעֵירִי: לְעַצְמָהּ — שְׁלֹשָׁה חֳדָשִׁים, לַחֲבֶרְתָּהּ — תִּשְׁעָה, וְחוֹלֶצֶת מִמָּה נַפְשָׁךְ.

Ze’eiri said: In order for herself [le’atzma] to be permitted to marry, she must wait three months after performing ḥalitza, since every woman must wait three months after her husband’s death before she marries again. Additionally, due to the concern for the possibility that her fellow wife may be pregnant, she must wait nine months, after which time that wife would have given birth had she been pregnant, and then she performs ḥalitza whichever way you look at it. If her rival wife gave birth in the meantime, she is permitted to marry anyone she wishes, and the ḥalitza is superfluous; if her rival wife did not give birth, necessitating levirate marriage, she is exempted by the ḥalitza. However, she may not perform ḥalitza earlier because ḥalitza performed while any wife of the deceased husband is pregnant is ineffective.

רַבִּי חֲנִינָא אָמַר: לְעַצְמָהּ — שְׁלֹשָׁה, לַחֲבֶרְתָּהּ — לְעוֹלָם. וְתַחְלוֹץ מִמָּה נַפְשָׁךְ!

Rabbi Ḥanina said: For those concerns relating to herself she must wait three months, as explained, but for concerns related to her fellow wife’s possible pregnancy she must wait indefinitely, until it is verified whether or not that wife gave birth. The Gemara challenges Rabbi Ḥanina’s opinion: But let her perform ḥalitza whichever way you look at it, since, whatever happened, after nine months she may certainly perform ḥalitza.

אַבָּיֵי בַּר אָבִין וְרַבִּי חֲנִינָא בַּר אָבִין אָמְרִי תַּרְוַיְיהוּ: גְּזֵירָה שֶׁמָּא יְהֵא וָלָד בֶּן קַיָּימָא, וְנִמְצָא אַתָּה מַצְרִיכָהּ כָּרוֹז לַכְּהוּנָּה.

Abaye bar Avin and Rabbi Ḥanina bar Avin both say in explanation of Rabbi Ḥanina’s opinion: It is a rabbinic decree lest there be viable offspring of that other wife. If so, her ḥalitza is superfluous, since she was exempt from both levirate marriage and ḥalitza; and then it transpires that you necessitate an announcement on her behalf stating that she is permitted to the priesthood, as a woman who has undergone ḥalitza is forbidden to a priest, but in this case it has become clear retroactively that she did not undergo ḥalitza.

וְלַיצְרְכַהּ? דִּלְמָא אִיכָּא דְּהָוֵי בַּחֲלִיצָה וְלָא הָוֵי בְּהַכְרָזָה, וְאָמְרִי: קָשָׁרוּ חֲלוּצָה לְכֹהֵן.

The Gemara asks: And so let an announcement be necessary for her if a viable offspring is found. The Gemara answers: Perhaps there will be people who were present at the ḥalitza ceremony but were not present at the announcement that she is permitted to marry a priest, and if this woman marries a priest they will mistakenly say: They are permitting a ḥalutza to marry a priest.

תְּנַן: ״נִיתַּן לִי בֵּן בִּמְדִינַת הַיָּם״, וְאָמְרָה: ״מֵת בְּנִי וְאַחַר כָּךְ בַּעְלִי״ — נֶאֱמֶנֶת. ״מֵת בַּעְלִי וְאַחַר כָּךְ בְּנִי״ — אֵינָהּ נֶאֱמֶנֶת, וְחוֹשְׁשִׁין לִדְבָרֶיהָ, וְחוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת.

The Gemara deliberates further about this: We learned in a mishna (Yevamot 118b): If a woman says: A son was born to me in a country overseas, and she also said: My son died, and then my husband died, she is deemed credible. However, if she said: My husband died and then my son died, she is not deemed credible about the sequence of events, but even so one must be concerned about her statement that her husband died childless. Consequently, she must perform ḥalitza, but she may not enter into levirate marriage.

וְלֵיחוּשׁ דִּלְמָא אָתוּ עֵדִים וְאָמְרִי כִּדְקָאָמְרָה, וְנִמְצָא אַתָּה מַצְרִיכָהּ כָּרוֹז לַכְּהוּנָּה! אָמַר רַב פָּפָּא: בִּגְרוּשָׁה. רַב חִיָּיא בְּרֵיהּ דְּרַב הוּנָא אָמַר, בְּאָמְרָה: ״אֲנִי וָהוּא נֶחְבֵּאנוּ בִּמְעָרָה״.

The Gemara says: Just as there is concern about an announcement for the priesthood, let us be concerned that perhaps witnesses will eventually come and testify that the sequence of events was as she said, rendering her ḥalitza superfluous. And then it transpires that you necessitate an announcement on her behalf stating that she is permitted to the priesthood, and nevertheless the mishna instructs her to perform ḥalitza. Rav Pappa said: There it is referring only to a divorced woman, who was divorced from a previous husband, so that she is already prohibited from marrying a priest in any case. Rav Ḥiyya, son of Rav Huna, said: It is referring to a case where she said: He and I were hiding alone with our son in a cave. Consequently, there is no concern that witnesses will come and testify about the sequence of the events.

מַתְנִי׳ שְׁתֵּי יְבָמוֹת, זוֹ אוֹמֶרֶת: ״מֵת בַּעְלִי״, וְזוֹ אוֹמֶרֶת: ״מֵת בַּעְלִי״. זוֹ אֲסוּרָה מִפְּנֵי בַּעְלָהּ שֶׁל זוֹ, וְזוֹ אֲסוּרָה מִפְּנֵי בַּעְלָהּ שֶׁל זוֹ.

MISHNA: If there are two sisters-in-law married to two childless brothers who testify about their marital status, and this one says: My husband died, and that one says: My husband died, although each one of them is deemed credible with regard to her own status as a widow, this one is prohibited from marrying due to the possibility that the husband of that other sister may be alive, obligating her in levirate marriage, and that one is prohibited from marrying due to the husband of this sister, according to the same rationale. Although each is accorded credibility as to her own husband’s death, the halakha is that sisters-in-law are among the five types of women not accorded credibility with regard to each other’s permissibility to marry because of possible conflicts of interest.

לָזוֹ עֵדִים, וְלָזוֹ אֵין עֵדִים. אֶת שֶׁיֵּשׁ לָהּ עֵדִים — אֲסוּרָה, וְאֶת שֶׁאֵין לָהּ עֵדִים — מוּתֶּרֶת. לָזוֹ בָּנִים, וְלָזוֹ אֵין בָּנִים. אֶת שֶׁיֵּשׁ לָהּ בָּנִים — מוּתֶּרֶת, וְאֶת שֶׁאֵין לָהּ בָּנִים — אֲסוּרָה.

If this one has witnesses to her husband’s death, and that one does not have witnesses, then the one who has witnesses is prohibited from marrying, as there are no witnesses to the death of her yavam to exempt her from levirate marriage; but the one who has no witnesses is permitted to marry based on her own testimony that her husband died combined with the witnesses’ testimony exempting her from levirate marriage. If this one has children and that one has no children, then the one with children is permitted to marry, as she herself is deemed credible with regard to her husband’s death, and her children exempt her from levirate marriage. But the one without children is prohibited from marrying, as the death of her yavam has not been corroborated independently of her sister-in-law’s testimony.

נִתְיַיבְּמוּ, וּמֵתוּ הַיְּבָמִין — אֲסוּרוֹת לְהִנָּשֵׂא. רַבִּי אֶלְעָזָר אוֹמֵר: הוֹאִיל וְהוּתְּרוּ לַיְּבָמִין — הוּתְּרוּ לְכׇל אָדָם.

If there were two additional yevamin with whom these two widows entered into levirate marriage, and then the yevamin died childless, the women are prohibited from marrying, since the concern about an additional living yavam still remains. Rabbi Elazar says: Since these women were permitted to marry the living brothers-in-law, as the testimony of each was deemed credible with regard to her own status, they are permitted, from then on, to marry any man because their statements, taken together, indicate that neither one is obligated to enter into levirate marriage.

גְּמָ׳ תָּנָא: לָזוֹ עֵדִים וּבָנִים, וְלָזוֹ לֹא עֵדִים וְלֹא בָּנִים — שְׁתֵּיהֶן מוּתָּרוֹת.

GEMARA: It was taught in a baraita: If this one has witnesses that her husband died and also has children, and the other has neither witnesses nor children, they are both permitted to marry. This is because the woman who has children is exempt from levirate marriage, and the woman who has no children may rely upon the witnesses’ testimony that her yavam died.

נִתְיַיבְּמוּ וּמֵתוּ הַיְּבָמִין — אֲסוּרִין לְהִנָּשֵׂא. רַבִּי אֶלְעָזָר אוֹמֵר: הוֹאִיל וְהוּתְּרוּ לַיְּבָמִין — הוּתְּרוּ לְכׇל אָדָם.

It was taught in the mishna: If they both entered into levirate marriage and then the yevamin they married died, they are prohibited from marrying. Rabbi Elazar says: Since they were permitted to marry the yevamin, they are permitted to any man.

בָּעֵי רָבָא: מַאי טַעְמָא דְּרַבִּי אֶלְעָזָר? מִשּׁוּם דְּקָסָבַר צָרָה מְעִידָה לַחֲבֶרְתָּהּ, אוֹ דִלְמָא מִשּׁוּם דְּהִיא לָא מְקַלְקְלָא נַפְשַׁהּ.

Rava raised a dilemma: What is Rabbi Elazar’s reasoning? Is it because he holds in general that one rival wife may testify for another rival wife about her husband’s death, and he similarly holds that all of the five types of women who are presumed to have a conflict of interest with each other may testify for one another nonetheless? Or perhaps it is because she would not cause herself injury. Although she would be suspected of lying and saying that her husband died in order to harm her rival wife, if she herself enters into levirate marriage it can be assumed that she was telling the truth, because if she does so while her husband is actually alive, she would be committing incest with her brother-in-law. Consequently, her rival wife is also permitted to marry on the basis of her testimony.

לְמַאי נָפְקָא מִינַּהּ?

The Gemara asks: What is the practical difference between the two reasons?