The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
The baraita teaches that a “mistaken” chalitzah (ceremony releasing one from the obligation of yibum, levirate marriage) is sufficient to free the yevamah, allowing her to marry whomever she wants.
There is a difference of opinion regarding the definition of a “mistaken” chalitzah. According to Reish Lakish, it is when the yavam is told that the chalitzah ceremony will make her his wife. Rabbi Yochanan disagrees, arguing that both the yavam and the yevamah must understand the implications of the chalitzah in order for it to be valid. He explains the case to be when the yavam is told that if he participates in the chalitzah, he will be paid 200 zuz (i.e. a large sum of money).
In such a case, would the money need to be paid?
The Gemara relates that such a case came before Abayye, when the yavam to whom Rav Papa’s relative fell was an inappropriate match for her. Abayye wanted to tell him that the act of chalitzah would complete the yibum but Rav Papa – concerned with Rabbi Yohanan’s ruling – suggested instead that he be offered 200 zuz to participate. After the chalitzah was complete, Rav Papa refused to pay, bringing a baraita that ruled in the case of a person who was escaping from prison (we are assuming that he was imprisoned unfairly) who offered a large sum of money to the captain of a ferry in order to complete his escape, that he can pay him the regular fare.
The rishonim offer several explanations for this ruling. Some say that it was the circumstances – that the escapee had no other recourse – so we accept his argument that he did not truly mean to commit himself to the payment. Others say that in such a case the captain of the ferry was obligated to assist the man who was escaping, and he cannot profit from the fulfillment of a mitzvah that he was obligated to do. The Ramban points out that this argument may not apply to the case of chalitzah, but others argue that chalitzah, too, is considered a mitzvah that the yavam should not benefit from.
The Shulchan Arukh rules (Even ha-Ezer 169:44) that although the chalitzah is valid even if the yavam was tricked, if money had been promised, it should be paid. Nevertheless, in a case where the court rules that the yavam should participate in chalitzah, she does not owe him anything.
The thirteenth perek of Masechet Yevamot, which begins on today’s daf, focuses on the subject of underage marriages, their legal standing and how they can be undone.
On a Biblical level, a father can arrange a marriage for his daughter when she is a minor, and this is considered a full marriage according to the halakha. In the event that there is no father, the Sages instituted a Rabbinic marriage that can be arranged by the girl’s mother or older brother. This was done in order to protect her interest in a society where a young girl with no father may be taken advantage of. Even so, such a marriage is not a complete one. The girl has the right of mi’un – refusal. At any point she can announce that she does not want to participate in this relationship and the marriage will immediately become annulled, as if she had not been married at all.
The Mishna on our daf teaches that the possibility of a Rabbinic marriage exists only if the mother and/or brother informs the girl of what is going on. If they do not tell her that a marriage is being arranged for her, there is no need for mi’un at all. The Talmud Yerushalmi illustrates this as follows: If they dress up the girl in a fancy dress and tell her that she is to be married to a particular man, that is considered informing her. If they dress her up but do not clearly tell her that at the party she is to be married to him, that is not considered informing her. Some argue that this will be dependent on the age of the girl and her awareness of the significance of what is going on around her. Thus, a girl who does not yet grasp the significance of marriage will not even need to refuse the marriage.
Our Gemara quotes a baraita that discusses mi’un – refusal – and how it works:
Our Rabbis taught: What is regarded as mi’un? — If she said, ‘I do not want So-and-so my husband,’ or ‘I do not want the engagement that my mother or my brothers have arranged for me.’ Rabbi Yehudah said even more than this: Even if while sitting in the apiryon (bridal litter) and being carried from her father’s house to the home of her husband, she said, ‘I do not want So-and-so my husband,’ her statement is regarded as a declaration of refusal. Rabbi Yehudah said more than this: Even if, while the wedding guests were reclining in her husband’s house and she was standing and waiting upon them, she said to them, ‘I do not want my husband So-and-so,’ her statement is regarded as a declaration of refusal. Rabbi Yossi bar Yehudah said more than this: Even if, while her husband sent her to a shopkeeper to bring him something for himself, she said, ‘I do not want So-and-so my husband,’ you can have no mi’un greater than this one.
The Me’iri examines each of the cases in an attempt to show that each one adds a new element that we would not have been able to understand from the previous one; in each case her statement belies her actions, yet we accept her statement to be mi’un. If she is being carried in a bridal litter to her husband’s house, circumstances seem to show that she is willing to accept the marriage. This would certainly seem to be the case if she is serving the guests, or if she is doing her husband’s bidding by shopping for him. Nevertheless, if she says that she is not interested in the marriage it is accepted as mi’un and the relationship is dissolved.
Another approach is to view these statements as teaching that mi’un need not be done in a formal court setting, and even a conversation with family members, guests in the home, and even a statement made to a shopkeeper will be accepted as mi’un.
The Mishnah on our daf presents a case where two brothers are married to two sisters, and one of the sisters is still a minor who is married only a Rabbinic level. Should the brother who is married to the adult sister pass away, we are faced with an awkward situation: the surviving brother is married to one sister on a Rabbinic level and has a relationship of yibum to the other sister on a Torah level.
Three suggestions are raised in the Mishnah:
Rabbi Eliezer suggests that we teach the girl to do mi’un, dissolving the Rabbinic marriage, which will then allow for yibum to be performed.
Rabban Gamliel rules that the girl can do mi’un if she wants. Otherwise we will wait until she matures, when her marriage will take on full significance and her older sister will then be permitted to marry anyone.
Rabbi Yehoshua says that the surviving brother cannot remain married to either one. He will have to divorce his wife (since she is the sister of his yevamah, with whom he has a Torah-level relationship) and do chalitzah with the yevamah (since she is the sister of his divorced wife on a Rabbinic level).
The Gemara questions how Rabbi Eliezer can recommend mi’un, given the statement of bar Kapara that mi’un is an example of something that should always be avoided. The Gemara responds that in this situation, where mi’un will facilitate a mitzvah, it can be encouraged.
The Talmud Yerushalmi also teaches that a Jewish court will never encourage mi’un, and that we always find mi’un discussed as an initiative of the girl. Rabbeinu Chananel relates a tradition from the time of the Ge’onim that in order to avoid the possibility of mi’un, the practice of marrying off an underage girl was abandoned. According to the Maharshal, the Ashkenazi leadership declared a ban on anyone who does mi’un – although this was a topic of some dispute, as is clear from the Rama, Even ha-Ezer 155:10.
With regard to the marriage of a girl who is a minor, the Gemara presents Rav’s opinion that even after she becomes an adult, the marriage will not be finalized until the couple engages in marital relations. This statement is challenged with the presentation of the following story.
In the city of Neresh a man married a minor, and when she reached adulthood he arranged for the chuppah to take place. Someone came and kidnapped her and although he married her, when she was finally returned to her original husband the Rabbinic authorities of the town – who were students of Rav – did not insist that the second man divorce her. Thus it appears that even though the first wedding was not consummated, they considered the first marriage to be binding and the second one to be meaningless. Rav Ashi explains that this is a rabbinic decree, and that the Sages have the power to undo the second marriage, given the inappropriate method used by the kidnapper in taking a wife.
Rashi says that there is a Rabbinic ruling that such a wedding will not be recognized by the Sages. The Ramban and others argue, pointing out other cases in the Talmud where we do not find that such a rule applied. One of the explanations that he gives is that in this case, since there was an existing Rabbinic marriage, the Sages strengthened the status of that relationship, which did not allow for the possibility of a second marriage taking place.
The city of Neresh stood on the banks of a river of the same name, to the south of Sura. The city was a major business and industrial center in Babylon, with a large agricultural base that included the farming of dates and production of alcoholic beverages. The community was built at the edge of the desert, and its people were considered to be uncultured, yet there was an ancient Jewish community there that included sages, like Rav Papa, who made their homes there.
According to the Mishnah on our daf, if a yevamah comes to court within 30 days after the yibum is to have taken place, claiming that the yavam never consummated the yibum, the bet din will obligate him to perform chalitzah with her. If the claim is made after 30 days then we request of him that he perform chalitzah, but we do not obligate him to do so. The Gemara explains that the case of the Mishnah is when he contradicts her claim, arguing that he had fulfilled the mitzvah of yibum and has now divorced her, so there is no need for chalitzah. When such a claim is made within 30 days we accept her version, but if they had been living together for more than 30 days we assume that they had certainly engaged in relations, and we accept his version.
One question raised by the rishonim is why we do not force him to participate in the chalitzah ceremony even in the case where her claim was made after 30 days? Since he has chosen to divorce her, he does not lose anything by performing chalitzah – so why should he object? In such a case we would anticipate that the principle kofin al midat Sedom should be applied. (The rule kofin al midat Sedom teaches that in an interaction between two people where one person benefits and the other suffers no loss, we obligate the one who will not lose out to accommodate the needs of the person who stands to benefit.)
Tosafot answer that that the yavam can claim that a court appearance is a burden for him, or even that the chalitzah ceremony is degrading towards him, so he is perceived as suffering a loss should he participate in it. According to the Nimukei Yosef he can also argue that if he simply divorces her, he reserves for himself the right to potentially remarry her at some point in the future. Performing chalitzah, on the other hand, would reinstate her status as his brother’s wife and the option to remarry her in the future will be closed to him.
Our Gemara quotes a Mishnah in Nedarim (90b) which teaches that originally if a woman made a statement that indicated that she could no longer live with her husband, the bet din would obligate him to divorce her and pay her ketubah. Later on, the Sages became concerned that a woman who no longer desired to be married to her husband would make one of these claims, so the ruling was changed.
The following statements are those that were deemed sufficient to end a marriage:
- teme’ah ani lekhah – the wife of a kohen tells him that she had relations with another man, where even if it was a case of rape, he will have to divorce her
- ha-shamayim beini le-veinkhah – literally “the heavens separate us”
- netulah ani min ha-yehudim – the woman takes a vow never to engage in relations with any Jewish man.
The suggestions made by the Sages when they rescinded their original ruling were:
- The woman will have to bring proof that she was raped
- ya’asu derekh bakasha – literally “they should make entreaties”
- The husband should use his powers to annul the vow, at least as it pertains to him (see Bamidbar ch. 30).
The second claim mentioned in the Gemara – ha-shamayim beini le-veinkhah – as well as the response to it – ya’asu derekh bakasha – are left unclear in the Gemara, and are subject to different interpretations by the rishonim.
Rashi appears to follow the Talmud Yerushalmi, and explains that she is claiming that her husband chooses not to engage in sexual relations with her. In the words of the Yerushalmi, her argument is “just as the heavens are far from the earth, so my husband is far away from me.” According to the Babylonian Talmud (Nedarim 91a) her claim is that he is incapable of engaging in relations.
The suggestion that in order to resolve this claim ya’asu derekh bakasha is understood by Rabbeinu Tam to mean that they should engage in prayer (apparently he is working with the explanation that the husband is suffering from a disability that does not allow him to engage in relations). Rashi follows the explanation of the Yerushalmi and Rabbeinu Chananel who explain that a meal should be arranged where the couple will be encouraged to work out their issues. The rishonim point out that the intention is that neither should be forced into any action, rather the couple should be counseled to work out the differences that exist between them.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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