Commentary for Yevamot 158:23

היכי דמי סריס חמה אמר רב יצחק בר יוסף אמר רבי יוחנן כל

— The fact is, said Rabbah, that this<span class="x" onmousemove="('comment',' R. Akiba's statement in our Mishnah. ');">³⁵</span> is a case where the widow became subject to him<span class="x" onmousemove="('comment',' As his deceased brother's wife. ');">³⁶</span> first and he was subsequently maimed.<span class="x" onmousemove="('comment',' Since the obligation arose while the man was still in a state of potency, halizah with him is both necessary and valid. ');">³⁷</span> Said Abaye to him: Let the prohibition against the maimed man override the positive precept of the levirate marriage! Did we not learn [of a similar case]: R. Gamaliel said, If she<span class="x" onmousemove="('comment',' A minor who was given away in marriage by her mother or brothers after the death of her father and whose elder sister has now become subject to the levirate marriage of her husband. ');">³⁸</span> made a declaration of refusal<span class="x" onmousemove="('comment',' Mi'un (v. Glos.). No divorce is needed in the case of such a minor's marriage. ');">³⁹</span> well and good;<span class="x" onmousemove="('comment',' Lit., 'she refused'. Her marriage becomes null and void retrospectively, and, as she has thus never been the legal wife of the levir, her sister (who is now no more the levir's wife's sister) may well contract with him the levirate marriage. ');">⁴⁰</span> and if not, let [the elder sister] wait until the minor grows up and she will then be exempt as his wife's sister.<span class="x" onmousemove="('comment',' Supra 18a, infra 109a. ');">⁴¹</span> Thus it follows that the prohibition against a wife's sister has the force of overriding [that of the levirate marriage]; here also, then, let the prohibition against the maimed man have the force of overriding it! — But, said R. Joseph. this Tanna<span class="x" onmousemove="('comment',' Who, in fact, deals with a case where the impotency had set in prior to the obligation and yet permits the halizah. ');">⁴²</span> represents the view of the Tanna of the school of R. Akiba, who maintains that [the issue] of a union which is subject to the penalty of negative precepts owing to consanguinity<span class="x" onmousemove="('comment',' Of the contracting parties. ');">⁴³</span> is regarded as a bastard, but [the issue] of a union that is merely subject to the penalty of negative precepts is not a bastard.<span class="x" onmousemove="('comment',' This Tanna, like the Tanna of our Mishnah, thus draws a distinction between two classes of trespass that are subject to the penalty of negative precepts: (a) cases due to consanguinity and (b) other cases. While the former are subject to the restrictions of those who are liable to kareth, the latter are not. Maimed persons belong to the latter class and are consequently subject to the levirate law. Cf. supra 49a. ');">⁴⁴</span> The text, 'To raise up unto his brother a name'<span class="x" onmousemove="('comment',' Deut. XXV, 7. ');">⁴⁵</span> should be applicable to this case<span class="x" onmousemove="('comment',' The maimed levir. ');">⁴⁶</span> also, but he,<span class="x" onmousemove="('comment',' Owing to his impotency at the time of the halizah. ');">⁴⁷</span> surely, is incapable of raising it!<span class="x" onmousemove="('comment',' Though at some earlier period he might have been; why then should he be subject to halizah? ');">⁴⁸</span> — Raba replied: If so,<span class="x" onmousemove="('comment',' If his former potency is not to be taken into consideration. ');">⁴⁹</span> there exists no woman who is eligible for the levirate marriage whose husband was not a saris by nature<span class="x" onmousemove="('comment',' Approaching death deprives a person of his generating powers, and he may then be regarded virtually as a saris. ');">⁵⁰</span> for a short time, at least, prior to his death.<span class="x" onmousemove="('comment',' The widow of such a saris should consequently be exempt from halizah (v. our Mishnah). How, then, would a widow ever be subject to halizah? It must, therefore, be admitted that a person's former capacity for propagation is taken into consideration even though that capacity was subsequently lost. ');">⁵¹</span> Against R. Eliezer,<span class="x" onmousemove="('comment',' Who maintains that a manmade saris does not submit to halizah, though prior to his incapacitation he was capable of propagation. ');">⁵²</span> however, Raba's reply<span class="x" onmousemove="('comment',' Which proves the contrary of R. Eliezer's statement (cf. supra n. 6). ');">⁵³</span> presents a [valid] objection! — There<span class="x" onmousemove="('comment',' Where the power of propagation is lost on approaching death. ');">⁵⁴</span> it is only a general state of debility<span class="x" onmousemove="('comment',' Which precedes death. ');">⁵⁵</span> that had set in.<span class="x" onmousemove="('comment',' And this cannot at all be compared with the case of an actual saris whose incapacity is due to a definite defect in his generative organs. ');">⁵⁶</span> What are we to understand by A SARIS BY NATURE? — R. Isaac b. Joseph replied in the name of R. Johanan: Any man

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