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
As we learned on yesterday’s daf, Bet Hillel believes that the mitzvah of yibum does not apply in a case where a man was married to two women – one of whom was forbidden to marry his brother – and he dies without children. In such a case, neither the ervah (the woman who was forbidden), nor her fellow wife (a tzarah in the language of the Mishnah), will become yevamot.
According to Bet Shammai, however, the tzarah is treated independently and is subject to the rules of yibum and/or chalitzah as if she had been the only wife of the deceased. The Mishnah comments that, their disagreement notwithstanding, the families of Bet Shammai and Bet Hillel continued to marry one another.
One suggestion raised in the Gemara‘s attempt to explain why the families were willing to marry one another is that, on a practical level, Bet Shammai accepted Bet Hillel’s rulings, even though they disagreed on a theoretical level. One example presented by the Gemara to prove that Bet Shammai insisted that their position was the correct one was the case of shoket Yehu – Yehu’s trough, which was connected to a regulation-size mikvah via a small opening, and people used it to immerse vessels that had become tamei (ritually defiled).
The Gemara relates that Bet Shammai arranged for the connection between the trough and the mikvah to be widened, since their position is that to be considered a kosher mikvah there must be a large opening between them; Bet Hillel believed that only a small opening – the size of a shfoferet ha-node – was necessary.
The node of a shfoferet ha-node is a bag or bottle made of an entire skin removed from an animal. These skins were used for a variety of purposes, but primarily to store small objects or food. When one was used to store liquids (water, wine or oil, for example) the skin would be removed without making any holes in it, and they would leave the skin of the legs attached, as well. When finished, one of the legs would have a tube – usually a reed – inserted into it, and the liquids would be poured in and out from that small tube.
The Gemara explains that both of these positions are based on a ruling (which is not accepted as the halakha) that a child born from a relationship between a non-Jewish man and a Jewish woman is a mamzer, an individual who is considered Jewish but is limited in who he can marry. The case of Solomon’s slaves is described in I Melakhim (9:18), where we learn that King Solomon had non-Jewish slaves who built the city of Tadmor. Apparently these slaves were known to have taken Jewish women as wives, and there was reason to suspect that their descendants were still living in that city. The case of the daughters of Jerusalem is explained by Rabbah bar bar Channah. Based on the passage in Eicha (5:11), he suggests that when the first Temple was destroyed and the city of Jerusalem sacked, although most of the attackers looked to take the spoils of gold and silver, some turned to the daughters of Jerusalem.
The city of Tadmor was an oasis in the Syrian Desert. For many years it was a central business district and important crossroads between Syria, Arabia and Babylon (see map). The city was sometimes called Tarmod, but it is best known by the name Palmyra, for the many palm trees that grew there.
One of the women about whom the first Mishnah (2a) taught that there is no mitzvah of yibum is the case of eishet achiv she-lo hayah be-olamo – when there is a brother who was not born until after the woman became a widow. In such a case, the severe prohibition of a person marrying his brother’s wife remains in effect, and the woman does not have to wait until the newborn child is old enough to perform yibum or chalitzah; she can get married immediately.
This halakha is mentioned as one of 15 cases in the first Mishnah in the masechet; the first Mishnah of the second perek – which begins on our daf – deals with it in some detail. The Gemara suggests that the source for this halakha is the passage that opens the rules of yibum (see Devarim 25:5), beginning with the condition “when brothers live together,” which implies that this is a law that applies only when the brothers were alive at the same time.
Tosafot ask whether the rule of derakhehah darkei no’am (see Mishlei 3:17) should be applied in this case. Derakhehah darkei no’am – the idea that the commandments of the Torah are pleasant and considerate – is used in many circumstances in the Talmud to clarify that a given interpretation cannot be considered because it would make fulfilling the Torah an unpleasant experience. In our case, it should be fairly obvious that forcing the widow to wait and see whether a brother will be born to her late husband would contradict the idea of derakhehah darkei no’am.
The answer suggested by Tosafot is that the pasuk brought as a source by our Gemara includes even a case when the late husband’s mother was pregnant, a situation that would not have been covered by derakhehah darkei no’am.
In truth, the Talmud Yerushalmi does make use of the idea of derakhehah darkei no’am, albeit without using that specific language, arguing that were the yevamah (the widow) to be obligated to wait for the possibility of a new brother, surely the Torah would have mentioned the role played by her in-laws within these laws, since the possibility of their having more children impacts on the status of the yevamah.
Throughout Masechet Yevamot we have been learning the rules of the commandment of yibum – under what circumstances will a widow become a yevamah who marries her late husband’s brother, when she is forbidden to him, etc.
What is the relationship between the yavam (the brother upon whom the commandment of yibum falls) and the yevamah (the widow) prior to their fulfilling the commandment of yibum or, alternatively, their decision to perform chalitzah, which will effectively end their familial connection? Could the brother choose to marry one of the yevamah‘s immediate relatives (e.g. her mother or her sister), or would that be tantamount to marrying a forbidden woman to whom he is related through marriage?
To deal with this question, the Gemara introduces the concept of zikah and teaches that there is an argument whether zikah exists between the yavam and the yevamah. Rav Huna quotes Rav as permitting the yavam to marry his yevamah‘s mother, indicating that he does not believe that zikah exists between them. Rav Yehuda forbids such a marriage, which shows that, in his view, there is zikah.
The word zikah is a noun that expresses a theoretical relationship or connection, which – in its original meaning – indicates that one person is tied to another in some way (in modern Hebrew, for example, the word azikim means handcuffs or restraints). The Sages used the term less for its literal meaning and more to express a legal or emotional tie between people.
Our Gemara suggests that according to Rav Yehuda the zikah is so strong that even if the woman dies, the potential yavam will not be allowed to marry her relatives, since we view it as though there was a relationship between them that was similar to marriage. The Talmud Yerushalmi, however, brings an opinion that even if you accept the concept of zikah, in the event that the yevamah dies, it becomes clear that the yibum relationship is never completed and the zikah is retroactively annulled. Thus the surviving yavam would be permitted to marry the dead woman’s relatives.
On yesterday’s daf we learned of the concept of zikah – a connection between the potential yavam and yevamah that creates almost a relationship of marriage between them. The idea of zikah is used by our Gemara to explain the contrarian position of Rabbi Shimon in our Mishnah (18b).
Thus far in Masechet Yevamot we have accepted that the case of eishet achiv she-lo hayah be-olamo – when there is a brother who was not born until after the woman became a widow – is not included in the mitzvah of yibum (see daf 17); thus, in such a situation, neither the widow nor her tzarah (fellow wife) could become the yevamah of such a brother. In our Mishnah (18b), however, we learn that Rabbi Shimon requires either yibum or halitzah in just such a case.
The Gemara explains that, according to Rabbi Shimon, an example of eishet achiv she-lo hayah be-olamo will be when a man with no brothers passes away with no children. Any brother born after his death will be considered an eishet achiv she-lo hayah be-olamo. If, however, there was a living brother at the time that the first brother dies, and that brother performs yibum, when a new brother is born we view the yevamah as the full wife of the living brother, and so the prohibition of eishet achiv she-lo hayah be-olamo would not apply should the present husband die with no children.
Rav Oshiya goes one step further in the Gemara, arguing that even if the yavam had not yet taken the widow as his yevamah at the time that the newborn brother arrived, nevertheless because of the rule of zikah we consider them already married, so Rabbi Shimon would not consider this a case of eishet achiv she-lo hayah be-olamo.
Abayye points to an obvious difficulty with applying zikah in this fashion. What if there are two surviving brothers when the first brother dies? How can Rabbi Shimon consider the yevamah “married” to both of them based on the rule of zikah?
In truth, although it is simpler to understand how zikah works when there is only one yavam, the rishonim suggest that zikah to more than one yavam means that as long as the potential exists for yibum to take place between people, we consider all of the prohibitions that stem from a marital relationship to be in place, even as it is clear that no true marriage exists.
Up until this point, the Mishnayot in Masechet Yevamot have been teaching about cases where a husband dies with no children, but the commandment of levirate marriage cannot be performed because the dead man was married to a woman who was an ervah – a close relative who is forbidden to marry – to the surviving brother. Thus such a woman cannot become a yevamah, nor is there a need to free her to marry others through chalitzah.
Our Mishnah teaches that there are other women whose status is such that they cannot marry the brother, and so, there is no possibility of yibum (levirate marriage). Nevertheless, chalitzah is still necessary so that she will be permitted to marry outside the family. The two categories of such women are issur mitzvah and issur kedusha. The Mishnah defines issur mitzvah as women who are prohibited from marrying the potential yavam because of a Rabbinic ordinance forbidding their union, and issur kedusha as cases where they cannot get married because of a Biblical prohibition, but one that is less severe than an ervah, like a kohen who is married to a divorcee or anyone who marries a mamzer – an illegitimate child born from a forbidden sexual relationship.
Abayye explains the terminology as follows:
- Rabbinic ordinances are called issur mitzvah because of the concept of mitzvah lismo’ah divrei chachamim – that there is a mitzvah to listen to the words of the Sages. According to the Nimukei Yosef, this mitzvah is derived from the passage in Sefer Devarim (17:9-11) that teaches the importance of following the admonitions of the Sages.
- Simple Biblical prohibitions are called issur kedusha based on the passage in Sefer Vayikra (21:6-7) that refers to the kohanim as kedoshim – holy – in the context of forbidding them to marry a woman who is divorced.
The Rivan points out that aside from this pasuk that refers to a kohen, we also find a similar passage that refers to all Jewish people – vehitkadishtem veheyitem kedoshim (see Vayikra 20:7) – which explains the source for issur kedusha in the context of anyone marrying a mamzer. In fact, according to some manuscripts of the Talmud, the passage that appears in the Gemara is kedoshim tihiyu (see Vayikra 19:2), which applies to all Jewish people, not only to kohanim.
An example of a relationship that is forbidden by Rabbinic ordinance is a person’s son’s daughter-in-law. The Gemara suggests that one’s daughter’s daughter-in-law is also forbidden, mainly out of concern that the two cases will be confused with one another. This explanation came as a result of an enigmatic story related by Rav Chisda in the Gemara. Rav Chisda tells that in his youth he heard a great Rabbi – Rav Ami – teach, “a daughter-in-law is forbidden because of a daughter-in-law.” Uncertain of the meaning of this statement – and informed by the kalda’ei that he would grow up to be a teacher – Rav Chisda decided that, if he turned out to be one of the Sages, he would ascertain the meaning on his own, and if he were to become a simple teacher of children, he would ask the Sages who he met in the synagogue. Now as an adult, Rav Chisda realized on his own that Rav Ami meant that a person’s daughter’s daughter-in-law is forbidden lest she be confused with a person’s son’s daughter-in-law.
The kalda’ei to which Rav Chisda referred appear to be the same as the kasda’ei, one of the names of the Babylonians. Nevertheless, already in the Book of Daniel (see, for example, 2:2) we find that the kasda’ei were people who engaged in a specific profession – they were stargazers, or astrologists.
Although the Sages actively discouraged people from turning to these astrologists in order to learn the future – because such behaviors appear to contradict the commandment of tamim tihiyeh im Hashem elokekhah (see Devarim 18:13) – still, many people, and especially children and simple folk, would turn to them with questions about their future. Some rishonim understood that the Sages accepted that these kalda’ei actually had the ability to foresee the future on some level, but taught the people that they should not rely on them too much. The Rambam, however, understands that these fortunetellers are forbidden specifically because their alleged abilities are nothing but foolishness (see his Mishna Torah, Hilkhot Avodat Kochavim 11:16).
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In order for the commandment of yibum to come into effect, the two most basic components are for a married man to die with no offspring, and to have a living brother who can marry his widow, thus fulfilling the mitzvah. The Mishnah on our daf teaches that having any brother will allow the commandment to take effect, except for a brother that was born to a non-Jewish woman or slave; similarly, having any child will keep the commandment from taking effect, except for a child that was born from a non-Jewish woman or slave.
The Gemara interprets the use of the expression “any brother” and “any child” to include even the case of a brother or child who was a mamzer – a child born as a result of an adulterous or incestuous relationship – who ordinarily is not allowed to marry into the Jewish community (see Devarim 23:3) – deriving this from the passage u-ven ein lo (Devarim 25:5) that the mitzvah of yibum takes effect when he has no son. The expression ein lo is interpreted by the Gemara to mean ayen alav – examine his situation carefully; that any evidence of offspring will eliminate the mitzvah of yibum. This interpretation is explained by the Sema to mean that the Torah requires us to check that truly ben ein lo – there is no evidence whatsoever of a child.
Although the Gemara clearly indicates that the teaching of the Mishnah comes to show that a mamzer is considered a legitimate sibling or child with regard to the rules of yibum, the geonim and rishonim add another case that needs to be considered. What should the halakha be with regard to a sibling who has become an apostate? Do the rules of yibum still apply? Will we insist that the widow refrain from marrying anyone else if the apostate refuses to participate in a Jewish religious ritual? Similarly, if the apostate brother dies with no children, will his wife become a yevamah to his brothers (assuming, of course, that he was married to a Jewish woman)?
The first approach to these questions was to affirm that Jews remain Jews, even if they committed sins as severe as apostasy. Later on there were some geonim who suggested that we must distinguish between a situation where the brother’s apostasy took place before or after the wedding. In the event that already at the time of marriage the brother was an apostate, the suggestion is that the marriage took place conditionally with an understanding that the apostate brother was not to be included in the family for these purposes.
The Mishnah on our daf presents a case that appears to be most unusual. What happens if a man marries one of two sisters, but does not know which one he married? The Mishnah teaches that in such a case the man must divorce each of them, since he cannot marry two sisters. Even after he divorces one he cannot marry the other, since she may be the sister of his divorced wife, which is also forbidden by the Torah.
Two possibilities are presented by the Gemara as to how such confusion may have come about.
From gaonic literature it appears that a case was once presented to them where a marriage took place and afterwards there was a dispute about what happened, to the extent that no one was sure who was truly married. In this case, it was clear that a marriage took place between two people; we just cannot determine which two people they were.
The other possibility raised by the Gemara suggests that the confusion in our story stemmed from the fact that the marriage somehow was done without clarity from the very beginning – perhaps a situation where both sisters appointed a single individual to act as their agent to accept marriage proposals on their behalf. Someone approached the agent and offered him kessef kiddushin, money (or a ring), to effect the marriage – and said “with this money I am marrying one of the sisters” without clarifying which one he intended.
The Ritva suggests that if we assume yesh bereira – that we can ascertain someone’s intent retroactively, once they make a decision later on – then such a marriage may work. Still, he argues, the case might be where a person leaves the decision to someone else (e.g. “I will marry whichever woman my father decides”) and then that person disappears and cannot make the decision.
In the end, this possibility is rejected because that would be a case of kiddushim she-lo nimseru le-biah – marriage that could never be consummated – since the marriage itself created a situation that does not allow for a marital relationship to take effect.
It is well-known that Judaism does not actively proselytize, and even when prospective converts approach the bet din (the Jewish court), they are first discouraged from converting. Only after being told of the difficulties of life as a member of the Jewish community will the convert be accepted, once we are convinced that their desire to become a Jew is sincere. The Mishnah on our daf discusses a not uncommon (but problematic) reason for conversion – a desire to marry. The Mishnah teaches that someone who has a relationship with a non-Jewish woman should not marry her after she converts. Apparently, there is a concern that the conversion may have been done for the wrong reasons, which we would like to discourage. Nevertheless, if he does marry her, we do not obligate him to divorce her.
The Gemara points out that although we are uncomfortable with the idea that a convert will marry a person with whom he or she had a prior relationship, the Mishnah appears to accept the conversion as valid. This is a clear rejection of the position regarding a person who converts because they see material advantages to being a member of the Jewish community (see, for example, Megillat Esther 8:17).
The Nimukei Yosef and others explain that conversion is acceptable even if it was done for the wrong reasons because we assume that the person who converts truly accepts the requirements willingly, even if the process that brought them to convert was suspect. From the Rambam it appears that it is more of a technical question, and once a person has converted, we accept their present status quo state as a Jew.
The Gemara concludes by bringing a baraita that teaches that during the time that King David and King Solomon ruled, converts were not accepted, nor will they be in the days of the Messiah.
If a man reports to the bet din (the Jewish court) that a certain man has died, based on that testimony the bet din will act to allow the dead man’s wife to marry. The Mishnah on our daf teaches that if the man testified that a man had died, or if he said that he had killed a certain person, or that he was involved in the murder, the bet din will accept his testimony and permit the wife to marry. Nevertheless, the witness (or, perhaps, the murderer) will not be allowed to marry the widow himself. Rabbi Yehudah disagrees in the case where the man testifies that he was the murderer, and says that in such a case we cannot accept his testimony at all, since we do not allow a person to incriminate himself. Therefore the woman cannot marry him or anyone else, since we must assume that her husband is still alive.
According to the Gemara, the Tanna Kamma of the Mishnah also agrees that we cannot allow a person to incriminate themselves. The opinion is presented in the name of Rava that adam karov etzel atzmo, ve-ein adam masim atzmo rasha – just as a person cannot testify against a close relative in bet din similarly he cannot testify against himself, incriminating himself. Apparently, however, the Tanna Kamma relies on an often discussed Talmudic idea – palginan diburei – we split up his statement. In this case that means that we reject his self-incriminating statement, but we accept his testimony that the man had actually been killed.
The mechanism behind the concept of palginan diburei is subject to a disagreement among the rishonim. The Rashba argues that we can only apply it in cases where we can interpret the testimony in a way that will allow his entire statement to be understood as being truthful. For example, in our case, we could say that the witness who says “I killed him” actually means “I killed him…accidentally.” If it is impossible to interpret his testimony in such a way, we would not apply the principle of palginan diburei, and we would reject his testimony entirely. Others, however, explain that the concept of palginan diburei is powerful enough to allow us to accept the conclusion of his testimony (that the man is dead) even as we reject the incriminating aspect of it (that the witness murdered him).
Previous Mishnayot have taught that a person whose testimony allows a woman to marry (e.g. a person who brings a writ of divorce from a far-away land, someone who testifies that the husband had died or been killed, or even a Torah scholar who refuses to annul vows that the wife had taken against her husband, forcing them to divorce) cannot, himself, marry her; we suspect in such cases that he has an ulterior motive in his actions – that he desired her for himself. The Mishnah on our daf teaches that if such a witness was married at the time that he testified, if his wife dies, he would be permitted to marry her, since at the time of his testimony his situation as a married man makes him “above suspicion.”
It is interesting to note that in the time of the Mishnah the Biblical law permitting a man to marry more than one wife was still in effect (the practice was not discontinued until well after the Talmudic age, when Rabbeinu Gershom established limitations on such marriages. Even so, Sefardic communities did not accept this limitation until the modern age), so theoretically the witness could have had an interest in marrying this woman. Nevertheless, such marriages were relatively rare, and the Mishnah did not consider such an unlikely concern to be reason to establish a prohibition against marrying her. In fact, the Nimukei Yosef quotes a statement from the Talmud Yerushalmi (which is not found in our texts) that teaches that if there is reason to suspect him – if his wife is sick, for example, then we would not allow him to marry her.
The Rivan explains simply, that since the witness did not marry her right away, but waited until after his wife’s death to do so, all suspicions are removed. This concept is expressed by the Yerushalmi in the words ein adam matzui lahto le-ahar zman – we do not suspect a person of sinning if he will only benefit after a significant amount of time will pass.
We have already discussed the concept of zikah – the almost marital relationship that exists between the yavam and the yevamah before they have had the opportunity to fulfill the mitzvah of yibum or chalitzah (see Yevamot 18). The discussion of zikah is revived on our daf in the context of the following case:
There were three brothers and two of them were married to two sisters. The married brothers died, and both widows become potential yevamot to the surviving brother. In this case he certainly cannot marry (i.e. perform yibum with) both sisters, a relationship that is forbidden by the Torah. Can he marry one of them?
Rabbi Yohanan agrees that each of them will require chalitzah. In the event that one of the sisters dies, however, he distinguishes between them. If the sister who was widowed second passes away, he will be allowed to perform yibum. If the sister who was widowed first dies, he will not be allowed to perform yibum on the remaining sister because at the moment that her husband died, she was forbidden to the yavam, since her sister was already in a situation of zikah to the brother, and he could not marry both sisters.
One explanation given by the rishonim to explain why Rav permits even the second yevamah to get married (in the event that her sister died) is presented by Rabbeinu Chananel, the Rashba and others. They explain simply that Rav rejects the very concept of zikah (see Yevamot 18). In theory, therefore, he should allow the yavam to marry either of the two sisters, even if they both remain alive. What keeps him from doing that is not connected with zikah but with a different rule – that a person cannot perform an act that will negate the mitzvah of yibum. By performing yibum on one sister, the yavam is simultaneously negating the mitzvah of yibum on the other.
On the last daf we discussed a case where there were three brothers, two of whom were married to two sisters. The married brothers died, and both widows become potential yevamot to the surviving brother. The Mishna on our daf teaches that although the Tanna Kamma requires that both widows receive chalitzah, there is an opinion – Rabbi Shimon – that rules that these two sisters are permitted to marry whoever they want without a need for chalitzah (the brother certainly cannot marry both sisters, a relationship that is forbidden by the Torah).
The Gemara on our daf suggests that Rabbi Shimon does not require chalitzah for these sisters because of his reading of the passage in Vayikra (18:18) that forbids marrying two sisters. He understands that the pasuk (=verse) teaches that when sisters somehow gain the status of tzarot (fellow wives), as they do in our case, neither of them will be permitted. The Talmud Yerushalmi presents an alternative reading of Rabbi Shimon, arguing that he did not intend to forbid yibum with both of the widowed sisters, rather only with the one whose husband died second. Rabbi Oshiya explains that Rabbi Shimon views zikah (see Yevamot 18) as being the equivalent of actual marriage. Thus, when the second brother passes away, his widow is freed from any need of chalitzah, according to Rabbi Shimon, because the yavam is already “married” to the widow of the first brother who died.
Tosafot point out that this would be true only in the case where there is just one potential yavam. If there were more surviving brothers, then Rabbi Shimon also admits that we would allow the brothers to remain married to the widowed sisters, if each of them performed yibum with a different one. Clearly, according to Rabbi Shimon we need to distinguish between the case of a single yavam where zikah is tantamount to marriage, and more than one potential yavam, where the zikah relationship remains something less than that.
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