Yevamot 188

לו ומותר בקרובות שניה ושניה מותרת בקרוביו ואם מתה ראשונה מותר בשניה

TO HIM;<span class="x" onmousemove="('comment',' Since the marriage with the second was invalid V. infra 95a. ');">¹</span> AND HE IS PERMITTED TO MARRY THE RELATIVES OF THE SECOND WOMAN,<span class="x" onmousemove="('comment',' V. infra 97a. ');">²</span> AND THE SECOND WOMAN IS PERMITTED TO MARRY HIS RELATIVES. IF THE FIRST DIED HE IS PERMITTED TO MARRY THE SECOND. IF HE WAS TOLD, HOWEVER, THAT HIS WIFE WAS DEAD, AND HE MARRIED HER SISTER, AND THEN HE WAS TOLD THAT SHE WAS THEN<span class="x" onmousemove="('comment',' At the time he married her sister. ');">³</span>

אמרו לו מתה אשתו ונשא את אחותה ואחר כך אמרו לו קיימת היתה ומתה הולד ראשון ממזר והאחרון אין ממזר ר' יוסי אומר כל שפוסל ע"י אחרים פוסל ע"י עצמו וכל שאין פוסל ע"י אחרים אינו פוסל ע"י עצמו:

ALIVE BUT HAD SINCE DIED, ANY CHILD BORN BEFORE<span class="x" onmousemove="('comment',' Lit., 'the first child'. ');">⁴</span> [HIS FIRST WIFE'S DEATH] IS A BASTARD, BUT ANYONE BORN AFTER THAT<span class="x" onmousemove="('comment',' Lit.,'and the last'. ');">⁵</span> IS NO BASTARD. R. JOSE STATED:<span class="x" onmousemove="('comment',' His statement is explained infra. ');">⁶</span>

<big><strong>גמ׳</strong></big> ואע"ג דאזיל אשתו וגיסו למדינת הים דאהני הני נשואים דקמיתסרא אשת גיסו אגיסו אפ"ה אשת גיסו אסירא אשתו שריא ולא

WHOSOEVER DISQUALIFIES FOR OTHERS DISQUALIFIES FOR HIMSELF AND WHOSOEVER DOES NOT DISQUALIFY FOR OTHERS DOES NOT DISQUALIFY FOR HIMSELF. <b><i>GEMARA</i></b>. Even though his wife and his brother-in-law<span class="x" onmousemove="('comment',' The husband of his wife's sister. ');">⁷</span> went to a country beyond the sea,<span class="x" onmousemove="('comment',' And on the evidence of one witness, who testified that both were dead, the man married his wife's sister; and subsequently both travellers returned. ');">⁸</span> so that such marriage<span class="x" onmousemove="('comment',' Of the man with his sister-in-law. ');">⁹</span>

אמרינן מתוך שנאסרה אשת גיסו אגיסו תיאסר אשתו עליו לימא מתניתין דלא כר"ע דאי ר"ע הויא לה אחות גרושתו

had the effect of causing the prohibition of the wife of his brother-in-law to his brother-in-law, it is nevertheless the wife of his brother-in-law that is forbidden,<span class="x" onmousemove="('comment',' To her husband. ');">¹⁰</span> while his own wife is permitted.<span class="x" onmousemove="('comment',' To him ');">¹¹</span> and we do not say that, since the wife of his brother-in-law is forbidden to his brother-in-law, his Own wife also should be forbidden to him.<span class="x" onmousemove="('comment',' So that the same marriage which results in a prohibition of the one woman does not effect the permissibility of the other. ');">¹²</span> Are we to assume that our Mishnah does not represent the view of R. Akiba? For if [it be in agreement with] R. Akiba [his wife]<span class="x" onmousemove="('comment',' Who comes back and who, according to our Mishnah, is permitted to return to him. ');">¹³</span>

דתניא כל עריות שבתורה אין צריכות הימנו גט חוץ מאשת איש שנשאת על פי ב"ד ור"ע מוסיף אף אשת אח ואחות אשה וכיון דאמר ר"ע בעיא גט ממילא איתסרא עליה דהויא לה אחות גרושתו

would be the sister of his divorcee!<span class="x" onmousemove="('comment',' With whom marital relationship is forbidden. The second wife, according to R. Akiba, as will tentatively be shown anon, must be divorced. ');">¹⁴</span> For it was taught: None of the women In incestuous marriages forbidden in the Torah require a letter of divorce,<span class="x" onmousemove="('comment',' If they were married, such an unlawful marriage being regarded as mere harlotry. ');">¹⁵</span> except a married woman<span class="x" onmousemove="('comment',' Whose husband is reported, by one witness, to be dead. ');">¹⁶</span> who remarried in accordance with the decision of the <i>Beth din</i>.<span class="x" onmousemove="('comment',' Who accepted the evidence; and later the husband returned. In such a case the women requires a divorce from her second husband also. V. infra 88b. ');">¹⁷</span>

ולאו איתמר עלה א"ר גידל א"ר חייא בר יוסף אמר רב האי אשת אח היכי דמי כגון שקדש אחיו את האשה והלך למדינת הים ושמע שמת אחיו ועמד ונשא את אשתו דאמרי אינשי הך קמא תנאה הוה ליה בקידושין והאי שפיר נסיב

R. Akiba, however, adds<span class="x" onmousemove="('comment',' To the women who require a letter of divorce. ');">¹⁸</span> also a brother's wife<span class="x" onmousemove="('comment',' Whom a man married on the evidence that her husband (his brother) was dead, and her husband subsequently returned. ');">¹⁹</span> and a wife's sister.<span class="x" onmousemove="('comment',' Cf. the first case in our Mishnah. ');">²⁰</span> Now, since R. Akiba ruled that she<span class="x" onmousemove="('comment',' His wife's sister. V. supra n. 8. ');">²¹</span>

והאי אחות אשה נמי היכי דמי כגון שקידש את אשה והלכה למדינת הים ושמע שמתה עמד ונשא את אחותה דאמרי אינשי הך קמייתא תנאי הוה ליה בקדושיה והא שפיר נסיב אלא נשואין מי איכא למימר תנאה הוה ליה בנשואין

requires a letter of divorce, [his first wife] becomes ipso facto forbidden to him because she is the sister of his divorcee!<span class="x" onmousemove="('comment',' How, then, could it be said in our Mishnah that his first wife is PERMITTED TO RETURN TO HIM? ');">²²</span> Was not, however, the following statement made in connection with this<span class="x" onmousemove="('comment',' R. Akiba's. ');">²³</span> ruling: R. Giddal said in the name of R. Hiyya b. Joseph in the name of Rab, 'How is one to understand this "brother's wife"?<span class="x" onmousemove="('comment',' In whose case a letter of divorce is required. ');">²⁴</span> Where a man's brother, for instance, betrothed a woman and went to a country beyond the sea, and he,<span class="x" onmousemove="('comment',' The brother at home. ');">²⁵</span>

אמר ליה רב אשי לרב כהנא אי ר' עקיבא ליתני נמי חמותו דהא שמעינן ליה לר"ע דאמר חמותו לאחר מיתה לאו בשרפה

on hearing that his brother was dead, married his wife;<span class="x" onmousemove="('comment',' In such a case a divorce was necessary. ');">²⁶</span> since people might say<span class="x" onmousemove="('comment',' Should the brother return, and the brother at home not give his wife a letter of divorce. ');">²⁷</span> that the first<span class="x" onmousemove="('comment',' The brother who came back from a country beyond the sea. ');">²⁸</span> had attached a certain condition to the betrothal<span class="x" onmousemove="('comment',' A condition which had not been fulfilled and had thus rendered the betrothal invalid. ');">²⁹</span>

דתניא (ויקרא כ, יד) באש ישרפו אותו ואתהן אותו ואת אחת מהן דברי ר' ישמעאל ר"ע אומר אותו ואת שתיהן

and that the latter<span class="x" onmousemove="('comment',' The brother at home. ');">²⁵</span> had lawfully married her.<span class="x" onmousemove="('comment',' And so, in order that it be not suspected that a lawful marriage had been dissolved without a letter of divorce, It was enacted, as a preventive measure, that a letter of divorce was in such a case necessary. ');">³⁰</span> And how is one to understand a "wife's sister"?<span class="x" onmousemove="('comment',' In whose case a letter of divorce is required. ');">²⁴</span> Where a man, for instance, betrothed a woman and she went to a country beyond the sea, and he, on hearing that she died, married her sister;<span class="x" onmousemove="('comment',' In such a case a divorce was necessary. ');">²⁶</span>

בשלמא לאביי דאמר משמעות דורשין איכא בינייהו דר' ישמעאל סבר חדא כתיב ור' עקיבא סבר תרתי כתיב שפיר

since people might say<span class="x" onmousemove="('comment',' Should the woman return, and her sister not be given a letter of divorce. ');">³¹</span> that he had attached a certain condition to the betrothal<span class="x" onmousemove="('comment',' V. p. 641. n. 17. ');">³²</span> of the first<span class="x" onmousemove="('comment',' The woman who now returned. ');">³³</span> and that he, therefore, legally married the other'.<span class="x" onmousemove="('comment',' The sister who remained at home. Cf. supra p. 641, n. 18. ');">³⁴</span>

אלא לרבא דאמר חמותו לאחר מיתה איכא בינייהו ליתני נמי חמותו

In respect of marriage,<span class="x" onmousemove="('comment',' The case spoken of in our Mishnah. ');">³⁵</span> however, can it be said that one had attached a condition to marriage!<span class="x" onmousemove="('comment',' [Surely no condition is attachable to marriage; and even on the view that marriage may be contracted conditionally, it is unusual for a person to invalidate a marriage because of the non-fulfilment of a condition attached to it (v. Tosaf. s.v. [H])]. All would consequently know that the first marriage was a valid one and that the second was, therefore, invalid. No letter of divorce was, therefore, necessary even according to R. Akiba, whose view, contrary to the previous assumption, may well be represented in our Mishnah. ');">³⁶</span> Said R. Ashi to R. Kahana: If [our Mishnah represents the view of] R. Akiba, one's mother-in-law<span class="x" onmousemove="('comment',' Whom one married on receiving a report that his wife (her daughter) was dead. ');">³⁷</span> should also be mentioned,<span class="x" onmousemove="('comment',' In our Mishnah. ');">³⁸</span>

אמר ליה נהי דמיעטה קרא משרפה מאיסורא מי מיעטה קרא

since R. Akiba was heard to state: [The marriage of] a man's mother-in.law after the death [of his wife] is not punishable by burning!<span class="x" onmousemove="('comment',' And is presumably permitted. ');">³⁹</span> For it was taught: They shall be burnt with fire. both he and they,<span class="x" onmousemove="('comment',' Lev. XX. 14, speaking of a man who take with his wife also her mother (ibid.). ');">⁴⁰</span> he and one of them;<span class="x" onmousemove="('comment',' The one whom the man was forbidden to marry, viz., the woman he married last. ');">⁴¹</span> so R. Ishmael. R. Akiba said: He and both of them.<span class="x" onmousemove="('comment',' Sanh. 76b. ');">⁴²</span>

ותאסר בשכיבה דאחותה מידי דהוה אאשה שהלך בעלה למ"ה לא דמי אשתו דבמזיד אסירא מדאוריי' בשוגג גזרו בה רבנן

This presents no difficulty according to Abaye who explained that the difference between them<span class="x" onmousemove="('comment',' R. Ishmael and R. Akiba. ');">⁴³</span> lies in the interpretation of the text,<span class="x" onmousemove="('comment',' Lev. XX. 14, speaking of a man who take with his wife also her mother (ibid.). ');">⁴⁰</span> R. Ishmael maintaining that the text mentioned only one<span class="x" onmousemove="('comment',' Forbidden woman (v. supra n. 10). the first having been lawfully married. ');">⁴⁴</span> while R. Akiba maintains that the text spoke of two.<span class="x" onmousemove="('comment',' Women that were both forbidden to the man; where, for instance, he married his mother-in-law and her mother. According to this explanation of Abaye the question of marrying a mother-inlaw after the death of one's lawful wife did not arise in the dispute, and R. Akiba's opinion on the subject cannot, therefore, be inferred from it. ');">⁴⁵</span> According to Raba, however, who explained that the difference between them<span class="x" onmousemove="('comment',' R. Ishmael and R. Akiba. ');">⁴³</span> is [the case of marriage of] a man's mother-in-law after the death [of his wife].<span class="x" onmousemove="('comment',' R. Ishmael maintaining that even when a man had married his mother-in-law after the death of his wife he is to be burned, while R. Akiba maintains that he is burned only if both women were alive. (Cf. Sanh. 76b). ');">⁴⁶</span> his mother-in-law should also have been mentioned!<span class="x" onmousemove="('comment',' In our Mishnah; since, as has been shewn, according to Raba's explanation, marriage of a mother-in-law after the death of her daughter is, according to R. Akiba, permitted ');">⁴⁷</span> — The other replied: Granted that Scripture has excluded her<span class="x" onmousemove="('comment',' A mother-in-law that was married by her son-in- law. ');">⁴⁸</span> from the penalty of burning. has Scripture. however, excluded her from the prohibition?<span class="x" onmousemove="('comment',' Evidently not. Her case, therefore, could not have been mentioned in our Mishnah. ');">⁴⁹</span> Let her,<span class="x" onmousemove="('comment',' The first wife spoken of in our Mishnah, who IS PERMITTED TO RETURN TO HIM. ');">⁵⁰</span> however, be forbidden [to her husband] through his cohabitation with her sister, her case being similar to that of a woman whose husband went to a country beyond the sea!<span class="x" onmousemove="('comment',' And she married a second husband. In both cases the women acted unwittingly. As in the latter case the woman is forbidden to her husband, so should the woman in the case in our Mishnah. ');">⁵¹</span> — [The two cases are] not alike: His wife who, [if she had acted] presumptuously,<span class="x" onmousemove="('comment',' In marrying a second husband. ');">⁵²</span> is forbidden to him by Pentateuchal law, has been forbidden to him, when [she acted] unwittingly, by a preventive measure of the Rabbis;