Yevamot 60

קנין גמור קמ"ל דלא כב"ש

a perfect <i>kinyan</i>,<span class="x" onmousemove="('comment',' And not even halizah is required. ');">¹</span> he taught us<span class="x" onmousemove="('comment',' By stating that halizah must be performed. ');">²</span> that [the <i>halachah</i> is] not in accordance with Beth Shammai.

ולרב נחמן קשיא דרב אשי וכ"ת הוא הדין דאפי' מת ואחר כך גירש צרתה מותרת אלא זו היא למעוטי מאי למעוטי כנס ואח"כ גירש

But then as to R. Nahman's [inference] does not that of R. Ashi present a difficulty? And should you reply that the same law, that her rival is permitted,<span class="x" onmousemove="('comment',' To the third surviving brother. ');">³</span> is also applicable to the case where he<span class="x" onmousemove="('comment',' The first husband of the stranger. ');">⁴</span> died first and the other brother<span class="x" onmousemove="('comment',' The brother who divorced his wife. ');">⁵</span>

הניחא אי סבר לה כרבי ירמיה דאמר תברא מי ששנה זו לא שנה זו

divorced his wife afterwards,<span class="x" onmousemove="('comment',' The levirate bond with the stranger, prior to the divorce of his wife, not constituting the one woman a rival of the other. ');">⁶</span> what [it could be objected] would THIS IS exclude? It might exclude the case where he<span class="x" onmousemove="('comment',' The brother who divorced his wife. ');">⁵</span> married her<span class="x" onmousemove="('comment',' The stranger. ');">⁷</span>

והאי תנא סבר מיתה מפלת והאי תנא סבר נישואין הראשונים מפילים

first and then divorced his wife.<span class="x" onmousemove="('comment',' In such a case, since she was actually married, the stranger is regarded as the rival of the third brother's wife's sister, though at the time she becomes subject to him she and his wife's sister have ceased to be rivals. ');">⁸</span> This might be a satisfactory explanation if he<span class="x" onmousemove="('comment',' R. Nahman. ');">⁹</span> holds the view of R. Jeremiah who said, 'Break it up: He who taught the one did not teach the other,'<span class="x" onmousemove="('comment',' Supra 13a. ');">¹⁰</span>

זו היא למעוטי כנס ולבסוף גירש אלא אי סבר לה כרבא דאמר לעולם חד תנא הוא וזו ואין צ"ל זו קתני זו היא למעוטי מאי על כרחך כרבי ירמיה סבירא ליה

[for, if this is so]. one Tanna may hold the opinion that it is death<span class="x" onmousemove="('comment',' Of the childless brother. ');">¹¹</span> that causes the subjection<span class="x" onmousemove="('comment',' Of the widow to the levir. ');">¹²</span> while the other might be of the opinion that it is the original marriage<span class="x" onmousemove="('comment',' Of the childless brother. ');">¹¹</span>

ולרבא הניחא אי סבר לה כרב אשי זו היא למעוטי מת בלא גירש אלא אי סבר לה כרב נחמן זו היא למעוטי מאי ע"כ כרב אשי סבירא ליה:

that causes the subjection,<span class="x" onmousemove="('comment',' v. previous note and supra p. 65, n. 7. ');">¹³</span> and THIS IS would thus exclude the case where he first married<span class="x" onmousemove="('comment',' The stranger. ');">⁷</span> and then divorced;<span class="x" onmousemove="('comment',' His wife. ');">¹⁴</span>

<big><strong>מתני׳</strong></big> וכולן שהיו בהן קדושין או גרושין בספק הרי אלו הצרות חולצות ולא מתייבמות כיצד ספק קדושין זרק לה קדושין ספק קרוב לו ספק קרוב לה זהו ספק קדושין

if, however, he is of the same opinion as Raba who said, 'Both statements may in fact represent the views of one Tanna, it being a case of "this and there is no need to state that"',<span class="x" onmousemove="('comment',' V. supra p. 65, n. 14 and cf. p. 65, n. 12, so that even if marriage of the stranger took place prior to the divorce of the other, the former, after divorce had taken place, is permitted, even according to the Tanna of our Mishnah. ');">¹⁵</span> what does THIS IS exclude?<span class="x" onmousemove="('comment',' When the levirate marriage is permitted in both these cases. ');">¹⁶</span> — He<span class="x" onmousemove="('comment',' R. Nahman. ');">⁹</span>

ספק גרושין כתב בכתב ידו ואין עליו עדים יש עליו עדים ואין בו זמן יש בו זמן ואין בו אלא עד אחד זהו ספק גרושין:

has no alternative but to adopt the view of R. Jeremiah. And according to Raba,<span class="x" onmousemove="('comment',' Who holds that the subjection to the levirate marriage is caused by the death of the childless brother, and that the rival is permitted to the surviving levir even if the deceased had married her prior to his divorcing his wife, who is the sister of the surviving levir's wife. ');">¹⁷</span> the explanation would be satisfactory if he held the View of R. Ashi,<span class="x" onmousemove="('comment',' That a levirate bond exists. ');">¹⁸</span>

<big><strong>גמ׳</strong></big> ואילו בגרושין ספק קרוב לו ספק קרוב לה לא קתני מאי

for then, THIS IS would exclude the case of one who died without first divorcing his wife;<span class="x" onmousemove="('comment',' And without marrying the stranger who would, nevertheless, be forbidden to the surviving third brother on account of the levirate bond. ');">¹⁹</span> if, however, he holds the same view as R. Nahman,<span class="x" onmousemove="('comment',' That no levirate bond exists. ');">²⁰</span> what would THIS IS exclude?<span class="x" onmousemove="('comment',' In view of the fact that levirate marriage is permitted in all cases except one, where the second brother took the stranger in levirate marriage and did not divorce his wife, a case which was explicitly stated and required no expression like THIS IS to exclude it. ');">²¹</span>

טעמא אמר רבה אשה זו בחזקת היתר לשוק עומדת ומספק אתה בא לאוסרה אל תאסרנה מספק

-He<span class="x" onmousemove="('comment',' Raba. ');">²²</span> has no alternative but to accept the view of R. Ashi. <b><i>MISHNAH</i></b>. [IF IN THE CASE OF ANY ONE OF] ALL THESE<span class="x" onmousemove="('comment',' Fifteen relatives enumerated in the first Mishnah of the Tractate, supra 2af. ');">²³</span>

אמר ליה אביי אי הכי בקדושין נמי נימא אשה זו בחזקת היתר ליבם עומדת ומספק אתה בא לאוסרה אל תאסרנה מספק

THE BETROTHAL OR DIVORCE<span class="x" onmousemove="('comment',' On the part of the deceased childless brother. ');">²⁴</span> WAS IN DOUBT, BEHOLD, THESE RIVALS MUST PERFORM THE HALIZAH<span class="x" onmousemove="('comment',' Since it is possible that the betrothal was, or that the divorce was not valid, and they are consequently the rivals of a forbidden relative. ');">²⁵</span> BUT MAY NOT BE TAKEN IN LEVIRATE MARRIAGE.<span class="x" onmousemove="('comment',' It being possible that the betrothal was not, or that the divorce was valid and they are, therefore, not rivals of a forbidden relative. ');">²⁶</span>

התם לחומרא

WHAT IS MEANT BY DOUBTFUL BETROTHAL? IF WHEN HE THREW TO HER A TOKEN OF BETROTHAL<span class="x" onmousemove="('comment',' While they were both standing in a public domain and a distance of exactly eight cubits intervened between them. ');">²⁷</span> IT WAS UNCERTAIN WHETHER IT FELL NEARER TO HIM<span class="x" onmousemove="('comment',' I.e., within the four cubits nearest to him. ');">²⁸</span> OR NEARER TO HER,<span class="x" onmousemove="('comment',' Within her four cubits. The person within whose four cubits the object rested is deemed to be the legal possessor. ');">²⁹</span>

האי חומרא דאתי לידי קולא הוא זימנין דאזיל הוא ומקדש לה לאחותה קדושי ודאי

THIS IS A CASE OF DOUBTFUL BETROTHAL. DOUBTFUL DIVORCE? IF HE WROTE A LETTER OF DIVORCE IN HIS OWN HANDWRITING AND IT BORE NO SIGNATURES OF WITNESSES,<span class="x" onmousemove="('comment',' A document in one's own handwriting. even though it is not signed by witnesses, is within certain conditions and limitations deemed to be valid. V. B.B. 175b. ');">³⁰</span> OR<span class="x" onmousemove="('comment',' Where it is not in his own handwriting. ');">³¹</span> IF IT BORE SIGNATURES BUT NO DATE, OR IF IT BORE A DATE BUT THE SIGNATURE OF ONLY ONE WITNESS, THIS IS A CASE OF DOUBTFUL DIVORCE.

ואי נמי זימנין דאתא אחר ומקדש לה לדידה קדושי ודאי וכיון דאסר לה מר לצרה לייבומי אמרי דקמא קדושין ודבתרא לאו קדושין

<b><i>GEMARA</i></b>. In the case of divorce, however, It is not stated IT WAS UNCERTAIN WHETHER IT FELL NEARER TO HIM OR NEARER TO HER; what is the reason?<span class="x" onmousemove="('comment',' Why should not even halizah on the part of the rival, be required in such a case? ');">³²</span> -Rabbah replied: This woman<span class="x" onmousemove="('comment',' The rival. ');">³³</span> is in a state of permissibility to all men;<span class="x" onmousemove="('comment',' Lit., 'to the market', i.e., the public. The rival of a forbidden relative, not being subject to levirate marriage or halizah. is permitted to marry any one she desires. ');">³⁴</span> would you forbid her [marriage] because of a doubt?<span class="x" onmousemove="('comment',' The possibility that the forbidden relative's divorce was valid. ');">³⁵</span> You must not forbid her because of a doubt!<span class="x" onmousemove="('comment',' The doubt here being whether the forbidden relative was divorced at all. In the three cases of divorce mentioned in our Mishnah, however, the prohibition Is not due to doubtful divorce but to a defect or an irregularity in the document itself. ');">³⁶</span> Said Abaye to him: If so, let us also in the matter of betrothal say: This woman<span class="x" onmousemove="('comment',' The rival. ');">³⁷</span> is in a state of permissibility to the levir;<span class="x" onmousemove="('comment',' Had her husband died childless before he married the forbidden relative. ');">³⁸</span> would you forbid her<span class="x" onmousemove="('comment',' To be taken in levirate marriage. ');">³⁹</span> because of a doubt? You must not forbid her because of a doubt! — There<span class="x" onmousemove="('comment',' The case of doubtful betrothal. ');">⁴⁰</span> [it leads] to a restriction.<span class="x" onmousemove="('comment',' The prohibition to marry the levir. ');">⁴¹</span> But it is a restriction which may lead to a relaxation! For, sometimes, he would betroth her sister<span class="x" onmousemove="('comment',' The sister of the one whose betrothal was doubtful. ');">⁴²</span> by betrothal that was not uncertain, or it might occur that another man would betroth her also by a betrothal that was not uncertain and, as the Master has forbidden her rival to be taken in levirate marriage. it would be assumed that the betrothal of the first<span class="x" onmousemove="('comment',' Since her rival is forbidden. ');">⁴³</span> was valid and that that of the latter was not!<span class="x" onmousemove="('comment',' Because, in the first case, he betrothed his wife's sister; and, in the second, he betrothed a married woman. In the latter case, the betrothal being regarded as invalid, the woman might illegally marry another man. In the former case, should he die without issue, his maternal brother might illegally marry her, believing her never to have been the wife of his brother. ');">⁴⁴</span>