Yevamot 38

ר' שמעון אומר ביאתה או חליצתה של אחת מהם פוטרת צרתה חלץ לבעלת מאמר לא נפטרה צרה כנסה ומת ואח"כ נולד לו אח או שנולד לו אח ואח"כ כנסה ומת שתיהן פטורות מן החליצה ומן הייבום

R. Simeon said: Intercourse or <i>halizah</i> with the one of them<span class="x" onmousemove="('comment',' I.e., the second widow. ');">¹</span> exempts her rival.<span class="x" onmousemove="('comment',' As will be explained infra this applies to the case where the ma'amar was addressed to the first widow and the third brother was born subsequently, R. Simeon being of the opinion that it is uncertain whether the ma'amar has the same force as actual marriage or not. The rival is in either case exempt: If the ma'amar was binding, then even the first widow is according to R. Simeon permitted to the third brother, since it is a case of 'marriage prior to birth', and the halizah with the second consequently exempts the first as her rival, both having been married to the same husband; and if the ma'amar was not binding, the first widow is forbidden to the third brother as the widow of 'the brother who was not his contemporary' while the second is not her rival and may be taken in levirate marriage or perform the halizah. ');">²</span> If, however, he<span class="x" onmousemove="('comment',' The third brother. ');">³</span> participated in <i>halizah</i> with her to whom [the second brother had] addressed the ma'amar, her rival is not exempt.<span class="x" onmousemove="('comment',' Since it is possible that the ma'amar is not binding and she is in consequence forbidden to him as 'the wife of his brother who was not his contemporary' and her halizah has no validity. ');">⁴</span>

כנסה ונולד לו אח ואח"כ מת שתיהן פטורות מן החליצה ומן הייבום דברי ר"מ ור' שמעון אומר הואיל ובא ומצאה בהיתר ולא עמדה עליו שעה אחת באיסור מייבם לאיזו מהן שירצה או חולץ לאיזו מהן שירצה

If he<span class="x" onmousemove="('comment',' I.e., the second widow. ');">¹</span> married her<span class="x" onmousemove="('comment',' The first widow. ');">⁵</span> and died, and a [third] brother was subsequently born, or if a [third] brother was born, and subsequently he married her<span class="x" onmousemove="('comment',' The first widow. ');">⁵</span> and died, both [widows] are exempt from the <i>halizah</i> and the levirate marriage. If he married her<span class="x" onmousemove="('comment',' The first widow. ');">⁵</span>

הא בבא דסיפא למאן קתני לה אילימא לר' מאיר קתני לה מכדי לא שני ליה לרבי מאיר בין ייבם ואח"כ נולד בין נולד ואח"כ ייבם לערבינהו ולתנינהו

and [after that a third] brother was born and then he himself died, both widows are exempt from the <i>halizah</i> and the levirate marriage; this is the opinion of R. Meir. R. Simeon, however, said: Since, when he<span class="x" onmousemove="('comment',' The third brother. ');">⁶</span> came [into the world] he found her<span class="x" onmousemove="('comment',' The first widow. ');">⁷</span> permitted to him,<span class="x" onmousemove="('comment',' Having been born after her marriage with the second brother had entirely severed her connection with the first brother. ');">⁸</span> and she was never forbidden to him even for one moment, he<span class="x" onmousemove="('comment',' The third brother. ');">⁶</span>

אלא לאו רבי שמעון ובייבם ואח"כ נולד פליג בנולד ואחר כך ייבם לא פליג ש"מ

may take in levirate marriage whichever of them he desires or he may participate in the <i>halizah</i> with whichever of them he desires. Now, in accordance with whose view was the case in the latter clause<span class="x" onmousemove="('comment',' Marriage between the second brother and the first widow, followed by the birth of the third brother, which again was followed by the death of the second. ');">⁹</span> taught?<span class="x" onmousemove="('comment',' I.e., in accordance with whose view was it necessary to have the case of marriage prior to birth separated from that of marriage after birth? ');">¹⁰</span> If it be suggested that it was taught in accordance with the view of R. Meir,<span class="x" onmousemove="('comment',' To indicate that even in such a case he forbids marriage. ');">¹¹</span> it might be observed that, as R. Meir draws no distinction between marriage that was followed by birth and birth that was followed by marriage, all these cases should have been combined in one statement!<span class="x" onmousemove="('comment',' Lit., 'let him mix them and teach them'; the third case, 'if he married her and (after that a third) brother was born and then he himself died' should not have been separated from the previous two cases, since according to R. Meir it matters little whether marriage of the second brother with the first widow preceded or followed the birth of the third brother. ');">¹²</span>

אמר מר עמד השני לעשות מאמר ביבמתו ולא הספיק לעשות מאמר ביבמתו עד שנולד לו אח ומת ראשונה יוצאה משום אשת אחיו שלא היה בעולמו ושניה או חולצת או מתייבמת מאי עמד ומאי לא הספיק אי עבד עבד ואי לא עבד לא עבד

Consequently it must have been in accordance with the view of R. Simeon who thus differs<span class="x" onmousemove="('comment',' From the Rabbis. ');">¹³</span> only in the case where the levirate marriage was followed by birth'<span class="x" onmousemove="('comment',' As R. Papa stated. V. supra note 7. ');">¹⁴</span> but does not differ<span class="x" onmousemove="('comment',' From the Rabbis. ');">¹³</span> where birth was followed by levirate marriage.<span class="x" onmousemove="('comment',' Contrary to the opinion of R. Oshaia. ');">¹⁵</span>

אלא עמד מדעתה ולא הספיק מדעתה אלא בעל כרחה ודלא כרבי דתניא העושה מאמר ביבמתו שלא מדעתה ר' אומר קנה וחכ"א לא קנה

Our point is thus proved. The Master said, '[If] the second intended to address a <i>ma'amar</i> to his deceased brother's wife but before he was able to do so, a third brother was born while he himself died, the first widow is exempt as "the wife of the brother who was not his contemporary" and the second may either perform <i>halizah</i> or be taken in levirate marriage'. What is meant by 'he intended' and what by 'he was not able'? If he did it, it is an accomplished fact;<span class="x" onmousemove="('comment',' And the intention is of no consequence. ');">¹⁶</span> and if he did not do it, it is not an accomplished fact!<span class="x" onmousemove="('comment',' And the intention is of no consequence. ');">¹⁶</span> -In fact [this is the meaning:] 'He intended' with her consent and 'he was not able' with her consent but against her wish.<span class="x" onmousemove="('comment',' The object of the statement being that the ma'amar has not even partially the force of marriage if it was made against the woman's will. The second widow may, therefore, be taken in levirate marriage. ');">¹⁷</span>

מ"ט דר' גמר מביאה דיבמה מה ביאה דיבמה בעל כרחה אף קדושין דיבמה בעל כרחה ורבנן גמרי מקדושין דעלמא מה קדושין דעלמא מדעתה אף קדושין דיבמה מדעתה

This,<span class="x" onmousemove="('comment',' That the ma'amar addressed to the wife of a deceased brother (Yebamah. v. Glos.) is invalid unless she consented to the betrothal. ');">¹⁸</span> however, is not in agreement with the view of Rabbi. For it was taught: If a man addressed a ma'amar to his deceased brother's wife against her consent, Rabbi regards this as legal [betrothal].<span class="x" onmousemove="('comment',' Lit., 'he acquired'. ');">¹⁹</span> But the Sages say, This is not a legal [betrothal]. What is Rabbi's reason? — He deduces [this form of betrothal] from the intercourse with the wife of a deceased brother; as the Intercourse with the wife of a deceased brother may be effected against her will<span class="x" onmousemove="('comment',' V supra 8b. ');">²⁰</span> so may the betrothal of the wife of a deceased brother be effected against her will. And the Rabbis? — They deduce it from the usual form of betrothal;<span class="x" onmousemove="('comment',' The betrothal of a stranger. ');">²¹</span>

במאי קמיפלגי מר סבר מילי דיבמה ממילי דיבמה הוה ליה למילף ומר סבר מילי דקדושין ממילי דקדושין הוה ליה למילף

as the usual betrothal can be effected with the woman's consent only so may the betrothal of a yebamah<span class="x" onmousemove="('comment',' The wife of a deceased brother. ');">²²</span> be effected with her consent only. On what principle do they differ? — One Master<span class="x" onmousemove="('comment',' Rabbi. ');">²³</span> is of the opinion that matters relating to a yebamah should be inferred from matters relating to a yebamah and the Masters<span class="x" onmousemove="('comment',' The Sages. ');">²⁴</span> are of the opinion that matters of betrothal should be inferred from matters of betrothal.<span class="x" onmousemove="('comment',' Rid. 440. ');">²⁵</span>

עשה בה מאמר ואח"כ נולד לו אח או שנולד לו אח ואח"כ עשה בה מאמר ומת ראשונה יוצאה משום אשת אחיו שלא היה בעולמו ושניה חולצת ולא מתייבמת ר"ש אומר ביאתה או חליצתה של אחת מהן פוטרת צרתה

'If, however, he addressed a ma'amar to the widow, and subsequently a third brother was born, or if a third brother was born first and he<span class="x" onmousemove="('comment',' The second brother. ');">²⁶</span> addressed the ma'amar to the widow subsequently and died, the first widow is exempt as "the wife of his brother who was not his contemporary" while the second must perform the <i>halizah</i>, though she may not be taken in levirate marriage. R. Simeon said: Intercourse or <i>halizah</i> with the one of them exempts her rival'.<span class="x" onmousemove="('comment',' Supra 19a-b, q.v. for notes. ');">²⁷</span> What is R. Simeon referring to?<span class="x" onmousemove="('comment',' In differing from the Rabbis. Lit.,'on what does he stand'. ');">²⁸</span> If it should be suggested, 'To the case where the third brother was born first and he<span class="x" onmousemove="('comment',' The second brother. ');">²⁶</span>

ר"ש אהייא קאי אילימא אנולד לו אח ואח"כ עשה בה מאמר הא אמרת בנולד ולבסוף ייבם לא פליג ר"ש אלא אעשה בה מאמר ואח"כ נולד לו אח

addressed the ma'amar subsequently's surely it has been stated, that where birth preceded marriage R. Simeon does not differ from the Rabbis!<span class="x" onmousemove="('comment',' But agrees that the first widow in relation to the third brother is to be regarded as 'the wife of his brother who was not his contemporary'. Now, since it is possible that the ma'amar is as valid as actual marriage, how could R. Simeon have permitted the rival of a forbidden relative? Furthermore, the expression 'she exempts her rival' would be unsuitable, since her rival has all the time been exempt as the 'wife of the brother who was not his contemporary'. ');">²⁹</span> — But [the reference is] to the case where the ma'amar was addressed first and the third brother was born subsequently. Hence, 'if he participated in <i>halizah</i> with her to whom [the second brother had] addressed the ma amar, her rival is not exempt', because<span class="x" onmousemove="('comment',' Lit., 'what is the reason'. ');">³⁰</span> the [subjection of the] rival<span class="x" onmousemove="('comment',' To the third brother. ');">³¹</span> is a certainty<span class="x" onmousemove="('comment',' If the ma'amar was valid both widows are subject to the third brother, since it is a case of marriage before birth; if the ma'amar is invalid, the second is still subjected to the levir since, no marriage having taken place, she is not the rival of a forbidden relative. ');">³²</span>

חלץ לבעלת מאמר לא נפטרה צרה מ"ט משום דהואי צרה ודאי ובעלת מאמר ספק ואין ספק מוציא מידי ודאי

while [the subjection of her] to whom the ma'amar had been addressed is doubtful,<span class="x" onmousemove="('comment',' It being possible that the ma'amar is not valid, and the first widow thus remains forbidden to the third brother as 'the wife of his brother who was not his contemporary'. Halizah with her is, therefore, of no validity and cannot exempt the second widow. ');">³³</span> and no doubt may over-ride<span class="x" onmousemove="('comment',' Lit., 'puts out'. ');">³⁴</span> a certainty. R. Manasseh b. Zebid sat in the presence of R. Huna, and in the course of the session he said: What is R. Simeon s reason?<span class="x" onmousemove="('comment',' For permitting levirate marriage with the third brother in the case where the second brother had married the first widow prior to the birth of the third brother. ');">³⁵</span>

יתיב רב מנשה בר זביד קמיה דרב הונא ויתיב וקאמר מאי טעמא דר"ש מ"ט דר"ש כדאמר טעמא הואיל ובא ומצאה בהיתר ולא עמדה עליו שעה אחת באיסור

— 'What is R. Simeon's reason'! [Surely it is] as it has been stated: The reason is 'because when he was born he found her permitted to him, and she was never forbidden him even for one moment'!<span class="x" onmousemove="('comment',' Supra, q.v. for notes. ');">³⁶</span> But [the question rather is] what is the reason of the Rabbis?<span class="x" onmousemove="('comment',' Why do they forbid the levirate marriage between the first widow and the third brother, where the only relationship between them is through the second brother, the relationship through the first brother having ceased with the levirate marriage of the widow by the second brother prior to the birth of the third? ');">³⁷</span> -Scripture said, A/Id take her to him to wife, and perform the duty of a husband's brother unto her,<span class="x" onmousemove="('comment',' Deut. XXV, 5. ');">³⁸</span> the former levirate attachment still remains with her.<span class="x" onmousemove="('comment',' [H] 'taking her to wife', [H], does not remove from her the designation of 'brother's wife' [H]. ');">³⁹</span>

אלא מאי טעמא דרבנן אמר קרא ולקחה לו לאשה ויבמה עדיין יבומים הראשונים עליה אלא הא דתנן כנסה הרי היא כאשתו לכל דבר ואמר רבי יוסי בר חנינא מלמד

But then what of the following<span class="x" onmousemove="('comment',' Lit., 'but that'. ');">⁴⁰</span> where we learned, 'If he<span class="x" onmousemove="('comment',' A brother-in-law. ');">⁴¹</span> married her<span class="x" onmousemove="('comment',' The widow of his deceased childless brother. ');">⁴²</span> she is regarded as his wife in every respect'<span class="x" onmousemove="('comment',' Infra 38a. Keth. 80b. ');">⁴³</span> and [in connection with this] R. Jose b. Hanina said, 'This teaches