Yevamot 104

ולאשה בעלמא אין גט מפני שאין בידו לגרשה בעי רמי בר חמא ליבמתו מהו כיון דאגידא ביה כארוסתו דמיא או דלמא כיון דלא עבד בה מאמר לא תיקו

if<span class="x" onmousemove="('comment',' The scribe was asked to write the letter of divorce. ');">¹</span> for any other woman, the letter of divorce has no validity,<span class="x" onmousemove="('comment',' Even if it was given to the woman after he had married her. ');">²</span> because it was not in his power to divorce her.<span class="x" onmousemove="('comment',' Since at that time she was to him a complete stranger. ');">³</span>

בעי רב חנניה כתב גט לזיקתו ולא למאמרו למאמרו ולא לזיקתו מהו מאמר עילוי זיקה קא רמי והוה ליה כמגרש חצי אשה והמגרש חצי אשה לא עשה ולא כלום או דלמא האי לחודיה קאי והאי לחודיה קאי

Rami b. Hama inquired, however, what is the law if<span class="x" onmousemove="('comment',' The scribe was asked to wrote the letter of divorce. ');">⁴</span> for one's sister-in-law?<span class="x" onmousemove="('comment',' The letter of divorce having been written before the levirate marriage, and delivered to the widow after it had taken place. ');">⁵</span> Is she, because she is bound to him,<span class="x" onmousemove="('comment',' By the levirate bond. ');">⁶</span>

ותפשוט ליה מדרבא דאמר רבא נתן גט למאמרו הותרה צרתה לרבא פשיטא ליה לרב חנניה מיבעיא ליה מאי תיקו:

regarded as his betrothed<span class="x" onmousemove="('comment',' And the divorce is consequently valid. ');">⁷</span> or perhaps, since he addressed no ma'amar to her, she is not so regarded. This is undecided.<span class="x" onmousemove="('comment',' Teku, v. Glos. ');">⁸</span> R. Hanania inquired: What is the law if he<span class="x" onmousemove="('comment',' A levir after he addressed a ma'amar to his sister-in-law. ');">⁹</span>

חלץ ועשה מאמר: אמר רב יהודה אמר רב זו דברי ר' עקיבא דאמר אין קדושין תופסין בחייבי לאוין אבל חכ"א יש אחר חליצה כלום

wrote a letter of divorce in respect of his levirate bond but not in respect of his ma'amar, or in respect of his ma'amar and not in respect of his levirate bond?<span class="x" onmousemove="('comment',' Is she thereby forbidden to him as if a valid divorce had been given to her? ');">¹⁰</span> Is the ma'amar imposed upon the levirate bond,<span class="x" onmousemove="('comment',' And becomes united with, and inseparable from it. ');">¹¹</span> so that the levir's action<span class="x" onmousemove="('comment',' In severing the bond or annulling the ma'amar. ');">¹²</span>

ומי מצית מוקמת לה כרבי עקיבא והא קתני רישא נתן גט ועשה מאמר צריכה גט וחליצה ואי רבי עקיבא כיון דיהב לה גט מי מהני בה מאמר

is like that of divorcing half a woman,<span class="x" onmousemove="('comment',' Since the divorce in respect of his one connection with the woman has no validity in respect of his other connection which forms together with the first one complete whole. ');">¹³</span> and when a man divorces half a woman his action, surely, has no validity at all; or do they remain independent of one another?<span class="x" onmousemove="('comment',' Lit., 'that stands alone' (bis). The ma'amar and the levirate bond constitute separate and independent connections between the levir and the widow. Hence, if the divorce was for the levitate bond alone, the widow is forbidden to the levir who gave her the divorce (under the prohibition 'that doth not build etc.') as well as to his brothers (the levirate bond saving been severed); and if the divorce was for the ma'amar only, the widow, though forbidden to the levir who gave her the divorce (for the reason stated), is nevertheless permitted to his brothers, since the levirate bond has never been severed. ');">¹⁴</span> — Might not this enquiry be solved by reference to Raba's ruling? For Raba ruled: If he<span class="x" onmousemove="('comment',' The second of three brothers who had addressed a ma'amar to the first brother's widow. V. Mishnah supra 31b. ');">¹⁵</span>

והתניא רבי עקיבא אומר מנין לנותן גט ליבמתו שנאסרה עליו עולמית שנאמר (דברים כד, ד) לא יוכל בעלה הראשון אשר שלחה אחר שילוח

gave her a letter of divorce in respect of his ma'amar, her rival<span class="x" onmousemove="('comment',' The second brother's first wife who, while the ma'amar remained in force, was forbidden to the third brother. ');">¹⁶</span> is permitted!<span class="x" onmousemove="('comment',' To the third surviving brother if the second brother also died without issue. The two widows, owing to the divorce which had annulled the ma'amar, are no longer rivals; and being now the widows of two different brothers, are in fact both permitted to the third brother. The widow to whom the divorce had been given is forbidden only as a preventive measure (v. supra 32b). From the fact, however, that the second brother's first wife is permitted to the third surviving brother it follows that the divorce (a) annuls the ma'amar and (b) does not sever the levitate bond. Had it not annulled the ma'amar, the widow would have been forbidden owing to the levitate bond emanating from two levirs; while if the levirate bond also had been severed she would have been forbidden to the third brother as 'brother's wife'. Why then was R. Hanania doubtful on the point? ');">¹⁷</span> — This was obvious to Raba; to R. Hanania, however, it was a matter of doubt. What, then, is the decision? — This remains undecided.<span class="x" onmousemove="('comment',' Teku, v. Glos. ');">¹⁸</span>

אמר רב אשי גט יבמין מדרבנן וקרא אסמכתא בעלמא

IF THE LEVIR SUBMITTED TO <i>HALIZAH</i> AND THEN ADDRESSED TO HER A MA'AMAR. Rab Judah said in the name of Rab: This<span class="x" onmousemove="('comment',' That no act is valid after halizah. ');">¹⁹</span> is the view of R. Akiba who holds that betrothal with those whose intercourse involves the penalties of a negative precept is of no validity; the Sages, however, maintain that there is some validity in acts after <i>halizah</i>. But how can you ascribe it<span class="x" onmousemove="('comment',' The quoted section of our Mishnah, and presumably all our Mishnah. ');">²⁰</span> to R. Akiba? In the first section, surely, it was stated, IF THE LEVIR GAVE HER A LETTER OF DIVORCE AND THEN ADDRESSED TO HER A MA'AMAR, IT IS NECESSARY FOR HER TO OBTAIN [A SECOND] LETTER OF DIVORCE AND TO PERFORM THE <i>HALIZAH</i>, while if [this Mishnah represented the view of] R. Akiba would a ma'amar to her be valid after a letter of divorce had already been given to her? Surely it was taught: R. Akiba said, 'Whence is it deduced that if a man gives a letter of divorce to his sister-in-law she is thereby forbidden to him for ever? Because it was stated Her former husband, who sent her away, may not [take her again to be his wife],<span class="x" onmousemove="('comment',' Deut. XXIV, 4. ');">²¹</span>

תניא נמי הכי אמר רבי אין הדברים הללו אמורים אלא לדברי ר' עקיבא שהיה עושה חלוצה כערוה אבל חכמים אומרים יש אחר חליצה כלום ואני אומר אימתי בזמן שקדשה לשום אישות אבל קדשה לשום יבמות אין אחר חליצה כלום

[i.e., immediately] after sending her away'!<span class="x" onmousemove="('comment',' Even before she had been married to a second husband. (V. Deut, XXIV, 2-4). The superfluous expression 'who sent her away' implies that divorce in a certain case, viz., in that of a sister-in-law, causes the permanent prohibition of the divorced woman to the man who divorced her immediately after divorce had taken place. Now, since betrothal of a sister-in-law by a levir who divorced her is forbidden by the negative precept of Deut. XXIV, 4, how could a ma'amar addressed to her after divorce have any validity? ');">²²</span> R. Ashi replied: A divorce given by levirs is only Rabbinically valid,<span class="x" onmousemove="('comment',' Pentateuchally it has no validity at all. ');">²³</span> and the Scriptural text is a mere prop.<span class="x" onmousemove="('comment',' Since the prohibition is not Pentateuchal the ma'amar is obviously valid. ');">²⁴</span>

תניא אידך החולץ ליבמתו וחזר וקדשה רבי אומר אם קדשה לשום אישות צריכה הימנו גט לשום יבמות אין צריכה הימנו גט וחכמים אומרים בין שקדשה לשום אישות בין שקדשה לשום יבמות צריכה הימנו גט

Likewise it was also taught: Rabbi said, this statement<span class="x" onmousemove="('comment',' That no act is valid after halizah. ');">²⁵</span> was made only in accordance with the view of R. Akiba who treated a <i>haluzah</i> as a forbidden relative;<span class="x" onmousemove="('comment',' As no act of betrothal is valid in the case of the latter so is no such act valid in that of the former. ');">²⁶</span> the Sages, however, maintain that there is some validity in acts after <i>halizah</i>; and I say, 'When [is betrothal after <i>halizah</i> valid]? Only when he betrothed her as in ordinary matrimony,<span class="x" onmousemove="('comment',' By a form of betrothal prescribed in ordinary cases other than those of a levir. Such betrothal is valid even where it involves the transgression of a negative precept. ');">²⁷</span>

אמר רב יוסף מ"ט דרבי עשאוה כעודר בנכסי הגר וכסבור שלו הן דלא קני

but if he betrothed her for levirate union,<span class="x" onmousemove="('comment',' By addressing to her a ma'amar. ');">²⁸</span> there is no validity in any such act after the <i>halizah</i>.<span class="x" onmousemove="('comment',' The halizah having severed the levirate bond, there is no room any more for the levirate betrothal. The action of any levir using it is consequently null and void. ');">²⁹</span> It was taught elsewhere: If a man submitted to <i>halizah</i> from his sister-in-law and then betrothed her, Rabbi said, 'If he betrothed her as in ordinary matrimony it is necessary for her to obtain from him a letter of divorce, but if as for a levirate union there is no need for her to obtain from him a letter of divorce'. The Sages, however, said: 'Whether he betrothed her as in ordinary matrimony or as for the levirate union it is necessary for her to obtain from him a letter of divorce'.

א"ל אביי מי דמי התם לא קא מכוין למיקני הכא קא מכוין למיקני הא לא דמיא אלא לעודר בנכסי גר זה וכסבור של גר אחר הוא דקני

Said R. Joseph: What is Rabbi's reason?<span class="x" onmousemove="('comment',' For regarding as invalid a betrothal for a levirate union, when ordinary betrothal with the same woman would have been valid. ');">³⁰</span> — It was given the same legal force as that of the action of a person digging in the estate of a proselyte<span class="x" onmousemove="('comment',' Who was survived by no Jewish heirs. Anyone digging in such ownerless property with the intention of acquiring it gains thereby full legal title thereto. ');">³¹</span> believing it to be his own,<span class="x" onmousemove="('comment',' It having been situated in close proximity to his own estate. ');">³²</span>

אלא אמר אביי הכא במאי עסקינן כגון דאמר לה התקדשי לי במאמר יבמין רבי סבר מאמר עילוי זיקה קא רמי ואתאי חליצה אפקעתה לזיקה ורבנן סברי האי לחודיה קאי והאי לחודיה קאי מעיקרא אילו אמר לה התקדשי לי במאמר יבמין מי לא מהני השתא נמי מהני

which constitutes no <i>kinyan</i>.<span class="x" onmousemove="('comment',' As the digging (though a legal form of kinyan) is invalid because there was no intention to constitute a kinyan thereby, so also betrothal (though a legal kinyan) is invalid because the levir's intention was not to constitute an ordinary betrothal (which would indeed have been valid) but a levirate betrothal which after a halizah has no validity. ');">³³</span> Said Abaye to him:<span class="x" onmousemove="('comment',' R. Joseph. ');">³⁴</span> Are the two cases alike? There<span class="x" onmousemove="('comment',' Digging in the estate of a proselyte. ');">³⁵</span>

רבא אמר אי דאמר לה במאמר יבמין כולי עלמא לא פליגי דמהניא והכא במאי עסקינן כגון דאמר לה התקדשי לי בזיקת יבמין רבי סבר

he<span class="x" onmousemove="('comment',' The digger. ');">³⁶</span> had no intention at all of acquiring possession,<span class="x" onmousemove="('comment',' Since he believed the field to be his own. ');">³⁷</span> but here<span class="x" onmousemove="('comment',' Betrothal by the levirate formula. ');">³⁸</span> his intention, surely, was to acquire possession!<span class="x" onmousemove="('comment',' Of his sister-in-law as his legal wife. ');">³⁹</span> This, indeed, could only be compared to the case of a person who digs in the estate of one proselyte and believes it to be that of another, where he does acquire possession!<span class="x" onmousemove="('comment',' Since his intention was to execute by his act a legal kinyan, the mistake he made as to its owner is of no consequence. Similarly, here, the mistake in the nature of the union he was contracting should not affect the legality of the kinyan which he at all events intended. ');">⁴⁰</span> No, explained Abaye, here we are dealing with a case where the levir said to her, 'Be thou betrothed to me by the ma'amar of the levirate union'. Rabbi is of the opinion that the ma'amar can only be imposed upon the levirate bond,<span class="x" onmousemove="('comment',' Only where the levirate bond is still in force has the ma'amar the required validity. ');">⁴¹</span> but here<span class="x" onmousemove="('comment',' Where halizah had been performed. ');">⁴²</span> the <i>halizah</i> had already previously removed the levirate bond.<span class="x" onmousemove="('comment',' Hence the invalidity of the ma'amar. ');">⁴³</span> The Rabbis, however, are of the opinion that the one is independent of the other.<span class="x" onmousemove="('comment',' A ma'amar is consequently valid even where no levirate bond exists. ');">⁴⁴</span> If, then, the levir had said to her at first,<span class="x" onmousemove="('comment',' Before the performance of the halizah. ');">⁴⁵</span> 'Be thou betrothed unto me by this ma'amar of the levirate union', would not his <i>kinyan</i> have been valid?<span class="x" onmousemove="('comment',' Certainly it would. The force of the ma'amar irrespective of the levirate bond (v. supra n. 2) would have executed the kinyan. ');">⁴⁶</span> Consequently it is now also valid. Raba said: Had he said to her,<span class="x" onmousemove="('comment',' After the introductory formula, 'Be thou betrothed unto me'. ');">⁴⁷</span> 'By the ma'amar of the levirate union', there would be no disagreement [among the authorities] that it is valid; but here<span class="x" onmousemove="('comment',' The dispute between Rabbi and the Rabbis. ');">⁴⁸</span> we are dealing with a case where the levir said, 'Be thou betrothed unto me by the bond of the levirate'. Rabbi is of the opinion