Yevamot 46

<big><strong>מתני׳</strong></big> מי שקידש אחת משתי אחיות ואין יודע אי זה מהן קידש נותן גט לזו וגט לזו מת ולו אח אחד חולץ לשתיהן

<b><i>MISHNAH</i></b>. IF A MAN BETROTHED ONE OF TWO SISTERS AND DOES NOT KNOW WHICH OF THEM HE HAS BETROTHED, HE MUST GIVE A LETTER OF DIVORCE TO THE ONE AS WELL AS TO THE OTHER.<span class="x" onmousemove="('comment',' He is forbidden to live with either since each might be 'his wife's sister'. ');">¹</span> IF HE DIED,<span class="x" onmousemove="('comment',' Without issue. ');">²</span>

היו לו שנים אחד חולץ ואחד מייבם קדמו וכנסו אין מוציאין מידם

LEAVING A BROTHER,<span class="x" onmousemove="('comment',' Who survived him. ');">³</span> THE LATTER MUST PARTICIPATE IN THE <i>HALIZAH</i> WITH BOTH OF THEM.<span class="x" onmousemove="('comment',' Since it is not known which is his sister-in-law. He may not marry the one and submit to halizah from the other, because the sister of a haluzah (v. Glos.) is Rabbinically forbidden. Even prior to the halizah with the one he may not marry the other; for if she is not his sister-in-law she is still forbidden to him as the sister of his zekukah (v. Glos.) ');">⁴</span> IF HE HAD TWO BROTHERS,<span class="x" onmousemove="('comment',' Who survived him. ');">³</span>

שנים שקדשו שתי אחיות זה אינו יודע אי זו קידש וזה אינו יודע איזו קידש זה נותן שני גיטין וזה נותן שני גיטין מתו לזה אח ולזה אח זה חולץ לשתיהן וזה חולץ לשתיהן

ONE IS TO PARTICIPATE IN THE <i>HALIZAH</i><span class="x" onmousemove="('comment',' With one of the widows. ');">⁵</span> AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE.<span class="x" onmousemove="('comment',' With the other, subsequent to the halizah of the first. This procedure is safe in either ease; if the second widow is really his sister-in-law he is legally entitled to marry her. But even if she is not, she is no longer forbidden as the sister of the first who was his zekukah since the halizah has severed the bond. ');">⁶</span> IF THEY ANTICIPATED [THE <i>BETH DIN</i>] AND MARRIED THEM<span class="x" onmousemove="('comment',' Each brother married one of the sisters. ');">⁷</span>

לזה אחד ולזה שנים היחיד חולץ לשתיהן והשנים אחד חולץ ואחד מייבם קדמו וכנסו אין מוציאין מידם לזה שנים ולזה שנים אחיו של זה חולץ לאחת ואחיו של זה חולץ לאחת אחיו של זה מייבם חלוצתו של זה ואחיו של זה מייבם חלוצתו של זה

THEY ARE NOT TO BE [PARTED FROM] THEM.<span class="x" onmousemove="('comment',' Since each of them is entitled to marry one of the widows either as his yebamah (v. Glos.) or as a stranger. The question of the forbidden marriage of the sister of a zekukah does not arise, since both are now married, and the marriage of the zekukah to the one brother has severed her levirate bond with the other. ');">⁸</span> IF TWO MEN BETROTHED TWO SISTERS AND THE ONE DOES NOT KNOW WHOM HE BETROTHED AND THE OTHER DOES NOT KNOW WHOM HE BETROTHED, THE ONE MUST GIVE TWO LETTERS OF DIVORCE AND THE OTHER MUST ALSO GIVE TWO LETTERS OF DIVORCE. IF THEY DIED AND THE ONE LEFT A BROTHER AND THE OTHER ALSO LEFT A BROTHER, THE ONE BROTHER MUST PARTICIPATE IN THE <i>HALIZAH</i> WITH THE TWO WIDOWS AND THE OTHER ALSO MUST PARTICIPATE IN THE <i>HALIZAH</i> WITH THE TWO WIDOWS.<span class="x" onmousemove="('comment',' Neither may marry any of the widows since either might happen to be the sister of his zekukah. ');">⁹</span> IF ONE<span class="x" onmousemove="('comment',' Of the deceased. ');">¹⁰</span>

קדמו שנים וחלצו לא ייבמו השנים אלא אחד חולץ ואחד מייבם קדמו וכנסו אין מוציאין מידם:

LEFT ONE BROTHER AND THE OTHER LEFT TWO, THE ONE BROTHER MUST PARTICIPATE IN THE <i>HALIZAH</i> WITH THE TWO WIDOWS<span class="x" onmousemove="('comment',' For the reasons explained supra p. 138, n. 9. ');">¹¹</span> AND [AS REGARDS] THE TWO, ONE PARTICIPATES IN THE HALIZAH<span class="x" onmousemove="('comment',' And thus, in case she is the actual yebamah, severs the levirate bond between her and the brothers. Her sister may then be married by the other brother in any ease: If she is the sister-in-law he may rightly marry her; and if not, she is no longer forbidden as the sister of a zekukah in view of the fact that the halizah of the other had severed that bond. ');">¹²</span> AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE.<span class="x" onmousemove="('comment',' V. previous note. ');">¹³</span>

<big><strong>גמ׳</strong></big> שמע מינה קדושין שאין מסורין לביאה הוו קדושין

IF THEY ANTICIPATED [THE <i>BETH DIN</i>] AND MARRIED THEM,<span class="x" onmousemove="('comment',' Each brother married one of the sisters. ');">¹⁴</span> THEY ARE NOT TO BE DEPRIVED OF THEM.<span class="x" onmousemove="('comment',' V. p. 138. n. 13. ');">¹⁵</span> IF ONE<span class="x" onmousemove="('comment',' Of the deceased. ');">¹⁰</span>

הכא במאי עסקינן כשהוכרו ולבסוף נתערבו דיקא נמי דקתני ואינו יודע ולא קתני ואינו ידוע ש"מ

LEFT TWO BROTHERS AND THE OTHER<span class="x" onmousemove="('comment',' V. previous note. ');">¹³</span> ALSO LEFT TWO, ONE BROTHER OF THE ONE PARTICIPATES IN THE <i>HALIZAH</i> WITH ONE WIDOW AND ONE BROTHER OF THE SECOND PARTICIPATES IN THE <i>HALIZAH</i> WITH THE OTHER WIDOW, [AND THEN THE OTHER] BROTHER OF THE FIRST MAY CONTRACT LEVIRATE MARRIAGE WITH THE <i>HALUZAH</i> OF THE SECOND<span class="x" onmousemove="('comment',' This Procedure enables both widows to marry. because in the case of each it may be said: If she is his yebamah, he may marry her since his brother did not participate in the halizah with her but with her sister who was a Perfect stranger to him, and the halizah with her is of no legal value. If, on the other hand, she is not his yebamah, he may certainly marry her as a stranger. The question of the 'sister of a zekukah' does not arise, since that bond has in any case been severed by the halizah in which his brother had participated with her sister. ');">¹⁶</span> AND [THE OTHER] BROTHER OF THE SECOND MAY CONTRACT THE LEVIRATE MARRIAGE WITH THE <i>HALUZAH</i> OF THE FIRST. IF BOTH<span class="x" onmousemove="('comment',' Brothers of one of the deceased. ');">¹⁷</span>

מאי קמ"ל סיפא איצטריכא ליה מת ולו אח אחד חולץ לשתיהן היו לו שנים אחד חולץ ואחד מייבם דוקא מיחלץ והדר יבומי אבל יבומי ברישא לא דקא פגע באחות זקוקתו:

ANTICIPATED [THE <i>BETH DIN</i>] AND PARTICIPATED IN THE <i>HALIZAH</i>,<span class="x" onmousemove="('comment',' With both widows. ');">¹⁸</span> THE [OTHER] TWO MUST NOT BOTH CONTRACT THE LEVIRATE MARRIAGE,<span class="x" onmousemove="('comment',' One brother with the one widow and the other with the other widow; because whichever widow any one of them would desire to marry might be the sister of his [H]. ');">¹⁹</span> BUT ONE MUST PARTICIPATE IN THE <i>HALIZAH</i><span class="x" onmousemove="('comment',' With one 'of the widows. ');">²⁰</span>

שנים שקדשו שתי אחיות וכו': שמע מינה קדושין שאין מסורין לביאה הוו קדושין הכא נמי כשהוכרו ולבסוף נתערבו דיקא נמי דקתני ואין יודע ולא קתני ואין ידוע ש"מ

AND THE OTHER MAY THEN CONTRACT THE LEVIRATE MARRIAGE.<span class="x" onmousemove="('comment',' With the other sister. For the reason cf. supra p. 139, n. 4. ');">²¹</span> IF BOTH<span class="x" onmousemove="('comment',' The second two brothers. ');">²²</span> ANTICIPATED [THE <i>BETH DIN</i>]<span class="x" onmousemove="('comment',' After halizah was performed with the first. ');">²³</span>

ומאי קמ"ל סיפא איצטריכא ליה מתו לזה אחד ולזה שנים היחיד חולץ לשתיהן והשנים אחד חולץ ואחד מייבם

AND MARRIED<span class="x" onmousemove="('comment',' Each one of them one of the sisters. ');">²⁴</span> THEY ARE NOT TO BE DEPRIVED OF THEM.<span class="x" onmousemove="('comment',' Cf. supra p. 138. n. 13. ');">²⁵</span> <b><i>GEMARA</i></b>. Is it to be inferred from here that even betrothal which cannot culminate in connubial intercourse<span class="x" onmousemove="('comment',' It is now assumed that even at the time of the betrothal it was not known which of the sisters was betrothed; when, for instance, the man said 'I betroth one of you' and both appointed an agent to receive on their behalf the token of betrothal. In such a case the man may have no connubial intercourse with either of the women since each might be his wife's sister. ');">²⁶</span>

פשיטא היינו רישא מהו דתימא ליגזור תרי אטו חד קמ"ל

is also valid?<span class="x" onmousemove="('comment',' Since our Mishnah requires him to give a letter of divorce to each. Why then did this question remain a matter in dispute between Abaye and Raba in Kid. 51a? ');">²⁷</span> — Here we are dealing with the case where they were known<span class="x" onmousemove="('comment',' At the time of the betrothal, as to which was, and which was not the betrothed one. Hence it was a betrothal which could culminate in connubial intercourse. ');">²⁸</span> but were later confused. This may also be proved by deduction, since it was stated, AND HE DOES NOT KNOW<span class="x" onmousemove="('comment',' I.e., now. ');">²⁹</span>

ודוקא מיחלץ והדר יבומי אבל יבומי ברישא לא דקא פגע ביבמה לשוק:

and it was not stated 'and it was not known'<span class="x" onmousemove="('comment',' Which would have implied that the identity of the betrothed was never known. ');">³⁰</span> This proves it. What, then, does our Mishnah teach us?<span class="x" onmousemove="('comment',' If the betrothal was valid and the man does not know now whom he betrothed it is self-evident that both women must be divorced! ');">³¹</span>

לזה שנים ולזה שנים וכו': הא תו למה לי היינו הך מהו דתימא ליגזור דלמא מייבם בלא חליצה קמ"ל

— The second clause was necessary:<span class="x" onmousemove="('comment',' And because of the second the first also had to be stated. ');">³²</span> IF HE DIED AND LEFT A BROTHER, THE LATTER MUST PARTICIPATE IN THE <i>HALIZAH</i> WITH BOTH OF THEM. IF HE HAD TWO BROTHERS, ONE IS TO PARTICIPATE IN THE <i>HALIZAH</i> AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE, only <i>halizah</i> must be first and the levirate marriage afterwards, but not the levirate marriage first, since, thereby, he might infringe [the interdict against] the sister of her who is connected with him by the levirate bond.<span class="x" onmousemove="('comment',' His zekukah. V. supra p. 138, n. 11, ');">³³</span> IF TWO MEN BETROTHED TWO SISTERS etc. Does this imply that a betrothal which cannot culminate in connubial intercourse is also valid?<span class="x" onmousemove="('comment',' Cf.supra p. 140, n. 11. ');">³⁴</span>

מ"ש מהא דתנן ארבעה אחין שנים מהן נשואין שתי אחיות ומתו הנשואין את האחיות הרי אלו חולצות ולא מתייבמות

— Here also it is a case where they were known.<span class="x" onmousemove="('comment',' V. p. 140. n. 12. ');">³⁵</span> but were subsequently confused. This may also be proved by deduction, since it was stated, AND THE ONE DOES NOT KNOW,<span class="x" onmousemove="('comment',' I.e., now, ');">³⁶</span> and it is not stated 'and it is not known'.<span class="x" onmousemove="('comment',' V. p. 140, n. 14. ');">³⁷</span>

הכי השתא

This proves it. What, then, does our Mishnah teach us?<span class="x" onmousemove="('comment',' V. p. 140, n. 15. ');">³⁸</span> — It was necessary to have the latter clause,<span class="x" onmousemove="('comment',' And because of the second the first also had to be stated. ');">³⁹</span> IF THEY DIED … AND ONE LEFT ONE BROTHER AND THE OTHER LEFT TWO, THE ONE BROTHER MUST PARTICIPATE IN THE <i>HALIZAH</i> WITH THE TWO WIDOWS AND, [AS REGARDS] THE TWO, ONE PARTICIPATES IN THE <i>HALIZAH</i> AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE.<span class="x" onmousemove="('comment',' This indicates that halizah must take place first. ');">⁴⁰</span> Is not this obvious, being in the same case as the first clause?<span class="x" onmousemove="('comment',' Where it was stated that if there were two brothers one submits to halizah first while the other may subsequently contract the levirate marriage. ');">⁴¹</span> — It might have been assumed that [levirate marriage should be forbidden in the case of] two brothers as a preventive measure against the case Of one, hence we were taught [that it was not so], and also that <i>halizah</i> must be first and the levirate marriage afterwards, but the levirate marriage must not take place first, for thereby, one might infringe [the interdict against] a <i>yebamah</i>'s marriage to a stranger.<span class="x" onmousemove="('comment',' Lit., 'a yebamah for the street'. A yebamah who is subject to the levirate marriage may not be married by a stranger before the levir has submitted to halizah. For further notes on the whole passage v. Kid., Sonc. ed. pp. 26off. ');">⁴²</span> IF ONE LEFT TWO BROTHERS AND THE OTHER ALSO LEFT TWO etc. What need was there again for this statement? It is, surely. the same!<span class="x" onmousemove="('comment',' As the one already made earlier in our Mishnah: ONE PARTICIPATES IN THE HALIZAH AND THE OTHER MAY CONTRACT THE LEVIRATE MARRIAGE. There it is a case of two brothers and here also of two groups of two, one of each participating in halizah and the other contracting levirate marriage. ');">⁴³</span> — It might have been assumed that [the marriage should be forbidden] as a preventive measure against marrying without previous (halizah,<span class="x" onmousemove="('comment',' And each of the two brothers so marrying would infringe the prohibition against marriage of a doubtful yebamah and the sister of a zekukah. ');">⁴⁴</span> hence we were taught [that no such measure Was enacted].<span class="x" onmousemove="('comment',' This could not have been inferred from the previous clause where only one marriage takes place. The fact that at least one of the sisters may not be married and must perform halizah only, would sufficiently indicate that in the case of the other also halizah by one brother must precede the marriage by the other. Where, however, as here, both sisters are married it might well have been considered likely that the law requiring previous halizah might be overlooked. ');">⁴⁵</span> Wherein does this case differ from the following in which we learned: In the case of four brothers two of whom were married to two sisters, and those who were married to the sisters died, behold their widows may only perform the <i>halizah</i> but may not be taken in levirate marriage [by either of the levirs]?<span class="x" onmousemove="('comment',' 'Ed. V, 5, infra 26a. [According to Rashi (he question is from the concluding part of that Mishnah which reads, 'If they had forestalled (the Beth din) and married them, they must put them away', whereas in our Mishnah it is ruled that they are not to be parted. Aliter: In our Mishnah levirate marriage may take place after halizah had been performed, whereas in the other Mishnah no levirate marriage is allowed at all for fear it is contracted before halizah. v. Tosaf. ha-Rosh.] ');">⁴⁶</span> — What a comparison!<span class="x" onmousemove="('comment',' Lit., 'thus now'. ');">⁴⁷</span>