Yevamot 217

ורבי אלעזר אוסר וכן המגרש את היתומה והחזירה מותרת ליבם ורבי אלעזר אוסר קטנה שהשיאה אביה ונתגרשה כיתומה בחיי האב והחזירה דברי הכל אסורה ליבם:

MISHNAH. IF A MAN DIVORCED HIS WIFE AND REMARRIED HER, SHE IS PERMITTED TO MARRY THE LEVIR;<span class="x" onmousemove="('comment',' Though at the time his brother had divorced her she was forbidden to him as 'his brother's divorcee'. ');">¹</span> R. ELEAZAR<span class="x" onmousemove="('comment',' Mishnah edd.: R. Eliezer. ');">²</span> HOWEVER, FORBIDS.<span class="x" onmousemove="('comment',' The reason is given infra. ');">³</span> SIMILARLY, IF A MAN DIVORCED AN ORPHAN<span class="x" onmousemove="('comment',' A minor who was given to him in marriage by her mother or brothers, and who is entitled, therefore, to exercise mi'un. ');">⁴</span>

<big><strong>גמ׳</strong></big> אמר עיפה מאי טעמא דרבי אלעזר הואיל ועמדה עליו שעה אחת באיסורא אמרו ליה רבנן לעיפה אי הכי חליצה נמי לא תיבעי

AND REMARRIED HER,<span class="x" onmousemove="('comment',' Whether during her minority or after she had attained her majority. ');">⁵</span> SHE IS PERMITTED TO MARRY THE LEVIR;<span class="x" onmousemove="('comment',' It is the death of her husband, not his marriage with her, that subjects her to the levir; and at the hour of his death she was no longer his divorcee but his wife. ');">⁶</span> R. ELEAZAR, HOWEVER, FORBIDS. IF A MINOR WAS GIVEN IN MARRIAGE BY HER FATHER AND WAS DIVORCED,<span class="x" onmousemove="('comment',' While she was still in her minority, the letter of divorce having been accepted on her behalf by her father (Rashi). (Cf. Keth. 46b) Rashi s.v. [H] and Sonc. ed. p. 266, n. 6. ');">⁷</span>

וכי תימא הכי נמי והתניא משום רבי אלעזר אמרו חולצת אלא אמר עיפה ר' אלעזר לא ידענא מאי טעמא

[SO THAT SHE IS REGARDED] AS AN 'ORPHAN' IN HER FATHER'S LIFETIME,<span class="x" onmousemove="('comment',' A father, in accordance with Pentateuchal law, is entitled to give his minor daughter in marriage only once. After she has been divorced, therefore, a father has no more right to give her away in marriage than her mother or brothers in the case where the father is dead. As in the latter case mi'un cancels marriage so it does in the former. The minor thus assumes the status of 'orphan' while her father is still alive. ');">⁸</span> AND THEN HER HUSBAND REMARRIED HER,<span class="x" onmousemove="('comment',' During her minority. ');">⁹</span> ALL AGREE THAT SHE IS FORBIDDEN TO MARRY THE LEVIR.<span class="x" onmousemove="('comment',' If her husband died during her minority. She has the status of a divorcee because her letter of divorce, having been accepted by her father, is valid, Her subsequent marriage has no validity since her father can no longer act for her (cf. supra p. 756, n. 12) and her own act has no legal force. ');">¹⁰</span> <b><i>GEMARA</i></b>. 'Efa stated: What is R. Eleazar's reason?<span class="x" onmousemove="('comment',' For forbidding to the levir his brother's divorced wife despite the fact that at the time of his brother's death she was married to him again. ');">¹¹</span>

אמר אביי היינו טעמא דרבי אלעזר מספקא ליה אי מיתה מפלת אי נשואין הראשונים מפילים אי מיתה מפלת הא רמיא קמיה לייבום אי נשואין הראשונים מפילים הא עמדה עליו שעה אחת באיסור

Because there was a period when she was forbidden to him.<span class="x" onmousemove="('comment',' Lit., 'she stood for him one hour in prohibition'; i.e., at the time she was divorced she was forbidden to him under the penalty of kareth as his 'brother's divorcee'. Her subsequent remarriage does not alter her status. ');">¹²</span> Said the Rabbis to 'Efa: If so, <i>halizah</i> also should not be required!<span class="x" onmousemove="('comment',' As any other 'brother's divorcee'. ');">¹³</span> And should you reply that the law is so indeed; surely [it may be pointed out] it was taught: In the name of R. Eleazar it was stated that she does perform <i>halizah</i>! — In truth, said 'Efa, the reason of R. Eleazar is unknown to me. Abaye said, This is the reason of R. Eleazar:<span class="x" onmousemove="('comment',' For forbidding to the levir his brother's divorced wife despite the fact that at the time of his brother's death she was married to him again. ');">¹¹</span>

רבא אמר לעולם פשיטא לרבי אלעזר דמיתה מפלת ומיהו הכל בקיאין בגירושין ואין הכל בקיאין בחזרה

He was in doubt whether it was death<span class="x" onmousemove="('comment',' Of the childless husband, ');">¹⁴</span> that subjects [the widow to the levirate marriage] or whether it was the marriage that preceded it<span class="x" onmousemove="('comment',' Lit.,'the first'. ');">¹⁵</span> that subjects her to it. If it is death that subjects her to it, she should be subject to the<span class="x" onmousemove="('comment',' Lit., 'behold she is thrust before him'. ');">¹⁶</span> levirate marriage; and if it is the marriage preceding it<span class="x" onmousemove="('comment',' Lit.,'the first'. ');">¹⁵</span>

אדרבה חזרה כיון דיתבא תותיה אית ליה קלא מי לא עסקינן דאהדרה באורתא ושכיב בצפרא

that subjects her to it, then there was a period when she was forbidden to him.<span class="x" onmousemove="('comment',' Cf. supra n. 4. Hence levirate marriage is forbidden (owing to the second possibility), and halizah is necessary (owing to the first). ');">¹⁷</span> Raba said: It was in fact obvious to R. Eleazar that it is death<span class="x" onmousemove="('comment',' Of the childless husband, ');">¹⁴</span> that subjects [the widow to the levirate marriage], but while all well know of the divorce, not all are aware of the remarriage.<span class="x" onmousemove="('comment',' Should the levir, therefore, be permitted to contract with her the levirate marriage, it might be assumed by those who knew of the divorce and not of the remarriage that he married his brother's divorcee. Hence R. Eleazar's prohibition. ');">¹⁸</span> On the contrary! Remarriage gets noised abroad since the woman dwells with him! — Do we not, however, deal here [even with such a case as] where he remarried her in the evening and died in the morning?<span class="x" onmousemove="('comment',' Certainly we do, since the Mishnah applies to all possible cases. In such a case as the one mentioned the remarriage remains unknown. ');">¹⁹</span>

רב אשי אמר היינו טעמא דרבי אלעזר דגזר הני משום יתומה בחיי האב והחזירה הכי נמי מסתברא מדקתני סיפא קטנה שהשיאה אביה ונתגרשה כיתומה בחיי האב והחזירה דברי הכל שאסורה ליבם

R. Ashi said, This is the reason of R. Eleazar:<span class="x" onmousemove="('comment',' v. supra p. 757, n. 3. ');">²⁰</span> He forbade [the levirate marriage of] these<span class="x" onmousemove="('comment',' The remarried women spoken of in our Mishnah. ');">²¹</span> as a preventive measure against the remarriage of an 'orphan' [minor] in her father's lifetime.<span class="x" onmousemove="('comment',' Who, as stated in our Mishnah, may not be married by the levir because she retains the status of a divorcee. ');">²²</span> This<span class="x" onmousemove="('comment',' R. Ashi's explanation. ');">²³</span>

האי מאי למימרא פשיטא אלא לאו הא קמ"ל טעמא דר' אלעזר דגזר הנך משום האי שמע מינה

may also be logically supported; for in the final clause it was stated, IF A MINOR WAS GIVEN IN MARRIAGE BY HER FATHER AND SHE WAS DIVORCED [SO THAT SHE IS REGARDED] AS AN 'ORPHAN' IN HER FATHER'S LIFETIME, AND THEN REMARRIED HER HUSBAND, ALL AGREE THAT SHE IS FORBIDDEN TO MARRY THE LEVIR. Now what [need was there] to state [this when it is so] obvious!<span class="x" onmousemove="('comment',' As her father has no legal authority to give her in marriage, and as the remarriage that has been contracted by herself (a minor) has no validity, it is obvious that her previous legal status of divorcee remains in force and that she is, therefore, forbidden to the levir as 'his brother's divorcee'. ');">²⁴</span> Consequently it must be<span class="x" onmousemove="('comment',' Lit. 'but not'? ');">²⁵</span> this that was taught: R. Eleazar's reason<span class="x" onmousemove="('comment',' v. supra p. 757, n. 3. ');">²⁰</span> is because he forbade [the levirate marriages of] those as a preventive measure against [the levirate marriage of] this one. Thus our case has been proved.

תניא כוותיה דרב אשי מודים חכמים לר' אלעזר בקטנה שהשיאה אביה ונתגרשה הרי היא כיתומה בחיי האב והחזירה שאסורה ליבם מפני שגירושיה גירושין גמורין ואין חזרתה חזרה גמורה

It was taught in agreement with R. Ashi: The Sages agree with R. Eleazar in respect of a minor whom her father had given in marriage and who was divorced [so that she is regarded] as an 'orphan' in her father's lifetime, and who then remarried [her husband], that she is forbidden to [contract the levirate marriage with] the levir, because her divorce was a perfectly legal divorce, whereas her remarriage was not a perfectly legal remarriage. This,<span class="x" onmousemove="('comment',' That the Sages admit that the minor may not contract the levirate marriage. ');">²⁶</span> however, applies only where he<span class="x" onmousemove="('comment',' Her first husband. ');">²⁷</span> divorced her while she was a minor<span class="x" onmousemove="('comment',' Her father having accepted on her behalf the letter of divorce which is thus valid. ');">²⁸</span> and remarried her while she was still a minor;<span class="x" onmousemove="('comment',' When neither she nor her father had the right to contract the marriage (cf. supra p. 756, n. 12); and where the death of the husband occurred while she was still in her minority, so that there was no cohabitation at all when she was of age. ');">²⁹</span>

בד"א שגירשה כשהיא קטנה והחזירה כשהיא קטנה אבל גירשה כשהיא קטנה והחזירה כשהיא גדולה אי נמי החזירה כשהיא קטנה וגדלה אצלו ומת או חולצת או מתייבמת משום רבי אלעזר אמרו חולצת ולא מתייבמת

but if he<span class="x" onmousemove="('comment',' Her first husband. ');">²⁷</span> divorced her while she was a minor and remarried her when she was of age, and also if he remarried her while she was still a minor and she became of age while she was with him, and then he died,<span class="x" onmousemove="('comment',' So that cohabitation between them could take place while she was of age. ');">³⁰</span> she may either perform <i>halizah</i> or contract the levirate marriage.<span class="x" onmousemove="('comment',' Since the final act of cohabitation after she becomes of age constitutes a legal kinyan of marriage. ');">³¹</span> In the name of R. Eleazar, however, it was stated: She must perform <i>halizah</i> but may not contract the levirate marriage.<span class="x" onmousemove="('comment',' Keth. 73bf. Since it was stated that 'the Sages agree with R. Eleazar in respect of a minor&nbsp;… in her father's lifetime', it is obvious that R. Eleazar himself spoke of this case and presumably made it the cause of the prohibition of the levirate marriages with the others mentioned. ');">³²</span>

בעא מיניה רבא מרב נחמן צרתה מהו אמר ליה היא גופה גזירה ואנן ניקום וניגזור גזירה לגזירה

Raba enquired of R. Nahman: What is [the law<span class="x" onmousemove="('comment',' According to R. Eleazar. ');">³³</span> in respect of] her<span class="x" onmousemove="('comment',' A divorced minor whom the husband remarried when she was of age. ');">³⁴</span> rival?<span class="x" onmousemove="('comment',' Is her rival permitted levirate marriage? ');">³⁵</span> — The other replied: [The prohibition against] herself is a preventive measure;<span class="x" onmousemove="('comment',' Against the possibility of contracting levirate marriage with an 'orphan' in her father's lifetime. ');">³⁶</span>

והא תניא משום רבי אלעזר אמרו היא וצרתה חולצת היא וצרתה סלקא דעתך אלא לאו או היא או צרתה חולצת לאו תרוצי קמתרצת תריץ הכי היא חולצת צרתה או חולצת או מתייבמת:

shall we then go so far<span class="x" onmousemove="('comment',' Lit., 'rise'. ');">³⁷</span> as to enact a preventive measure<span class="x" onmousemove="('comment',' Prohibition of the levirate marriage of the rival. ');">³⁸</span> against a preventive measure?<span class="x" onmousemove="('comment',' Cf. supra note 5. Obviously not. ');">³⁹</span> But, surely, it was taught: It was stated in the name of R. Eleazar, 'She and her rival perform halizah'; Now can it possibly be imagined that she and her rival [are to perform <i>halizah</i>]? Consequently it must mean,<span class="x" onmousemove="('comment',' Lit., 'but no?' ');">⁴⁰</span>

<big><strong>מתני׳</strong></big> שני אחין נשואין לשתי אחיות קטנות ומת בעלה של אחת מהן הלזו תצא משום אחות אשה וכן שתי חרשות גדולה וקטנה מת בעלה של קטנה תצא הקטנה משום אחות אשה

'either she or her rival performs halizah'!<span class="x" onmousemove="('comment',' How then could it be said supra that, according to R. Eleazar, the rival may contract the levirate marriage? ');">⁴¹</span> — Are you not [in any case obliged to] offer an explanation?<span class="x" onmousemove="('comment',' The statement being obscure, and an explanation being required in any case. ');">⁴²</span> Explain, then,<span class="x" onmousemove="('comment',' The statement being obscure, and an explanation being required in any case. ');">⁴²</span> as follows: She performs <i>halizah</i> while her rival may either perform <i>halizah</i> or contract the levirate marriage.

מת בעלה של גדולה רבי אליעזר אומר מלמדין את הקטנה שתמאן בו

<b><i>MISHNAH</i></b>. WHERE TWO BROTHERS WERE MARRIED TO TWO SISTERS WHO WERE MINORS<span class="x" onmousemove="('comment',' And given in marriage by their mother or brothers. ');">⁴³</span> AND ORPHANS,<span class="x" onmousemove="('comment',' So in accordance with the separate edd. of the Mishnah. The last two words are wanting in cur. edd. ');">⁴⁴</span> AND THE HUSBAND OF ONE OF THEM DIED,<span class="x" onmousemove="('comment',' Without issue. ');">⁴⁵</span> [THE WIDOW]<span class="x" onmousemove="('comment',' Cur. edd., [H] 'that', is here omitted, in accordance with the reading of the separate edd. of the Mishnah, and the Palestinian Talmud, Cf. Wilna Gaon. ');">⁴⁶</span>

רבן גמליאל אומר אם מיאנה מיאנה ואם לאו תמתין עד שתגדיל ותצא הלזו משום אחות אשה

IS FREE<span class="x" onmousemove="('comment',' From levirate marriage and halizah. ');">⁴⁷</span> AS BEING [THE LEVIR'S] WIFE'S SISTER. SIMILARLY IN THE CASE OF TWO DEAF<span class="x" onmousemove="('comment',' Deaf and dumb, whose marriage is valid according to Rabbinic law only. ');">⁴⁸</span> [SISTERS ONE OF WHOM WAS] OF AGE AND [THE OTHER] A MINOR, IF THE HUSBAND OF THE MINOR DIED, THE MINOR IS FREE<span class="x" onmousemove="('comment',' From levirate marriage and halizah. ');">⁴⁷</span> AS BEING [THE LEVIR'S] WIFE'S SISTER. IF THE HUSBAND OF THE ELDER SISTER DIED, THE MINOR IS TO BE INSTRUCTED, R. ELIEZER<span class="x" onmousemove="('comment',' Others, 'Eleazar'. ');">⁴⁹</span>

רבי יהושע אומר אי לו על אשתו אי לו על אשת אחיו מוציא את אשתו בגט ואשת אחיו בחליצה:

STATED, TO EXERCISE HER RIGHT OF <i>MI'UN</i> AGAINST HIM.<span class="x" onmousemove="('comment',' Her husband. His marriage with her (a minor) being only Rabbinically valid, his levirate bond with the elder sister renders her forbidden to him. By the mi'un of the minor the levir is able to perform the Pentateuchal law. ');">⁵⁰</span> R. GAMALIEL SAID: IF SHE<span class="x" onmousemove="('comment',' The minor. ');">⁵¹</span> EXERCISED HER RIGHT OF <i>MI'UN</i> WELL AND GOOD;<span class="x" onmousemove="('comment',' Lit., 'she refused' and the elder sister is then enabled to contract the levirate marriage. ');">⁵²</span> BUT IF [SHE DID] NOT, LET HER WAIT<span class="x" onmousemove="('comment',' I.e., she is not forbidden to her husband, despite his levirate bond with her elder sister which his brother's death had created, (Cf. supra 51a). ');">⁵³</span>

<big><strong>גמ׳</strong></big> ומי שרי והתני בר קפרא לעולם ידבק אדם בשלשה דברים ויתרחק משלשה דברים ידבק בשלשה דברים בחליצה ובהבאת שלום ובהפרת נדרים ויתרחק משלשה דברים מן המיאון ומן הפקדונות ומן הערבונות מיאון דמצוה שאני:

UNTIL SHE IS OF AGE<span class="x" onmousemove="('comment',' And her marriage with her husband becomes Pentateuchally binding. ');">⁵⁴</span> WHEN THE OTHER BECOMES FREE<span class="x" onmousemove="('comment',' From levirate marriage and halizah. ');">⁴⁷</span> AS BEING [THE LEVIR'S] WIFE'S SISTER. R. JOSHUA SAID: WOE TO HIM<span class="x" onmousemove="('comment',' The surviving brother, ');">⁵⁵</span> BECAUSE OF HIS WIFE AND WOE TO HIM BECAUSE OF HIS BROTHER'S WIFE! HE MUST ALLOW HIS WIFE TO GO<span class="x" onmousemove="('comment',' He may not retain her owing to the levirate bond (cf. supra note ); R. Joshua, contrary to the opinion of R. Gamaliel, holding the view that a levirate bond does cause the prohibition of the widow's minor sister; and since the levirate bond is the result of a Pentateuchally binding marriage, the marriage with the minor, which is only Rabbinically valid, must be dissolved, ');">⁵⁶</span>

גופא תני בר קפרא לעולם ידבק אדם בשלשה דברים בחליצה כאבא שאול דתניא אבא שאול אומר הכונס את יבמתו לשם נוי לשם אישות לשם דבר אחר כאילו פוגע בערוה וקרוב בעיני להיות הולד ממזר

BY [GIVING HER] A LETTER OF DIVORCE,<span class="x" onmousemove="('comment',' Not by mi'un for the reason given in the Gemara infra. ');">⁵⁷</span> AND HIS BROTHER'S WIFE<span class="x" onmousemove="('comment',' Who is forbidden as the sister of his divorcee. ');">⁵⁸</span> BY [SUBMITTING TO HER] <i>HALIZAH</i>. <b><i>GEMARA</i></b>. But is this is permitted?<span class="x" onmousemove="('comment',' To instruct a minor to exercise her right of refusal. ');">⁵⁹</span>

בהבאת שלום דכתיב (תהלים לד, טו) בקש שלום ורדפהו

Surely. Bar Kappara taught: A man should always cling to three things and keep away from three things. 'A man should cling to the following three things': <i>Halizah</i>, the making of peace and the annulment of vows; 'and keep away from three things': — From <i>mi'un</i>, from [receiving] deposits and from acting as surety!<span class="x" onmousemove="('comment',' The reasons are given infra. From this then it is obvious that mi'un is not to be encouraged. Why then is THE MINOR TO BE INSTRUCTED TO EXERCISE HER RIGHT OF MI'UN? ');">⁶⁰</span> <i>Mi'un</i> [involving the fulfilment] of a commandment<span class="x" onmousemove="('comment',' As is the case in our Mishnah, where the exercise of mi'un enables the levir to observe the Pentateuchal commandment of the levirate marriage. ');">⁶¹</span> is different.<span class="x" onmousemove="('comment',' From ordinary mi'un; while the latter is to be avoided the former is to be encouraged. ');">⁶²</span> [Reverting to our] previous text, 'Bar Kappara taught: A man should always cling to three things&nbsp;… Halizah', in accordance with [a statement of] Abba Saul. For it was taught: Abba Saul said, 'If [a levir] married his sister-in-law on account of her beauty, or in order to gratify his sexual desires 'or with any other ulterior motive, it is as if he has infringed [the law of] incest; and I am even inclined to think that the child [from such a union] is a bastard'.<span class="x" onmousemove="('comment',' Supra 39b. ');">⁶³</span> 'The making of peace', for it is written, Seek peace and pursue it<span class="x" onmousemove="('comment',' Ps. XXXIV, 15. Pursue it [H] (rt. [H]). ');">⁶⁴</span>