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 commandment of yibum that we have been discussing throughout Masechet Yevamot is carried out by an act of sexual relations between the brother (the yavam) and the widow (the yevamah). According to the Torah, there is no need to first offer a ring or a marriage contract, as in a regular wedding, since this is effectively a continuation of the first brother’s marriage. Nevertheless, if one of the surviving brothers offers a betrothal ring to the widow – an act referred to in the Mishna as ma’amar – at least on a Rabbinic level, the yibum process is considered to have begun.
The Mishna on our daf offers a scenario in which there are three brothers, two of whom are married to sisters, while the third one is single. One of the married brothers dies, and the brother who is single offers ma’amar to the widow. Then the second married brother dies, as well.
In such a case, Bet Hillel rules that the surviving single brother cannot complete the mitzvah of yibum with either widow. He will have to offer the widow of the first brother both a get (a divorce) and chalitza; he will also have to perform chalitza on the second brother’s widow. This is true because his ma’amar has created a situation of partial marriage between the yavam and first yevamah. Since it is not a full marital relationship, we must view this as a situation where two sisters have become yevamot together, and he cannot perform yibum on either. Since there is a partial marital relationship, he must divorce the one who had received ma’amar.
The Mishna concludes by saying that it is such a case that leads people to say “oy lo (woe unto him), for he has lost his wife and his sister-in-law.”
Tosafot explain that this comment oy lo is specifically raised in this case because this man did nothing wrong and yet he discovers that all his efforts were for naught because of outside events over which he had no control. The Me’iri suggests that this language stems from the poignancy of this story. The single man had an opportunity to marry – perhaps even two opportunities – and yet nothing came of it.
There are two Mishnayot on today’s daf that are almost identical. In both of them, the scenario opens with three brothers, two of whom are married to sisters, while the third brother is married to an unrelated woman.
In the first Mishna, we learn that if one of the sisters becomes widowed and fulfills the mitzvah of yibum with the brother to whom she is permitted (she cannot marry the brother who is married to her sister), should that brother now die with no children, neither she nor her tzarah (fellow wife) will become yevamot to the surviving brother. She cannot because he is married to her sister; her fellow wife cannot because she is the tzarah of a woman forbidden to the yavam.
In the second Mishna, it is the brother who is married to the unrelated woman who dies, and his wife fulfills the mitzvah of yibum with one of the surviving brothers. Should that brother die, as well, neither she nor her tzarah (fellow wife) will become yevamot to the surviving brother. She cannot because she is the tzarah of a woman forbidden to the yavam, since he is married to her sister.
The Gemara asks the obvious question – why do we need both of these Mishnayot? Aren’t the cases so similar that there is no need to repeat the rule a second time?
The Gemara’s response is that we really do not need both, and that the rule of the second Mishna can be understood from the first. Nevertheless, once it was taught, Mishna lo zazah mimkomah – the Mishna is not moved from its place.
This idea is connected with a time when the Mishnayot were truly an oral tradition, and students learned them by heart in order. Leaving out or combining Mishnayot may have been very confusing to those students, so Rabbi Yehuda HaNasi (who edited the Mishna) chose to leave in Mishnayot even if they were not essential, since they were part of a long-studied tradition.
When a bet din – a Jewish court – needs to establish facts in order to make a decision, the preferred method is to listen to the testimony of eyewitnesses and rule according to the statement that they make. The principle taught by the Torah is that testimony of two witnesses is accepted as definitive (see Devarim 19:15), and in the words of the Talmud, trei ke-me’ah – if two witnesses testify, it is as though one hundred did.
What if two pair of witnesses come into court and each tells a different, conflicting story?
In such a case the Gemara rules that we must use other methods in order to reach a conclusion on how to decide the case. The Gemara’s suggestion is to rely on chazaka – we accept the status quo ante, i.e. that the situation has not changed – until we find compelling evidence that suggests otherwise.
The case presented by the Gemara to illustrate this rule is that of a bar shatyah – someone who suffers from a psychological condition where he is sometimes healthy and lucid, but when he suffers an attack, he is considered a shoteh – mentally incompetent. With such illnesses, sometimes attacks come with great regularity; other times a particular incident may trigger an attack. Still, there may be lengths of time when no symptoms exist whatsoever, and the person is completely healthy. During those periods, the halakha respects the individual’s health, obligating him in mitzvot and accepting his actions as valid according to Jewish law. Nevertheless, it is sometimes difficult to ascertain what his mental condition is simply by looking at or speaking with him, and it is necessary for the court to establish what his state of mind was when a given event took place.
If a bar shatyah sold land, for example, the court would have to investigate him. In the event that two sets of witnesses expressed opposite opinions on his state of mind, the Gemara concludes that we nullify the sale, leaving the land in the possession of the bar shatya, as it was in the beginning.
When a person performs an act that contains two forbidden actions, is he held responsible for both, or only for one? If, for example, someone who is not a kohen enters the Temple on Shabbat and performs the Temple service, is he held liable only for performing the Temple service (which is forbidden to someone who is not a kohen – see Bamidbar 18:7), or also for the act of sacrificing on Shabbat?
This basic situation is referred to by the Gemara as issur chal al issur, and we find an argument between Rabbi Chiya and bar Kappara on this matter, with Rabbi Chiya ruling that the person would be held liable for both, and bar Kappara ruling that they would only be responsible for one sinful act. Both Rabbi Chiya and bar Kappara are adamant about their positions – the Gemara quotes each of them as swearing that their ruling was the position taught by Rabbi Yehuda HaNasi.
The Gemara in Shavuot (26b) discusses a case like this one and concludes that neither person would be held responsible for taking a false oath, since they were each certain of their positions. Rabbi Shmuel ha-Levi, in his Ramat Shmuel, adds that in this case it is even possible that Rabbi Yehuda HaNasi changed his mind at some point and taught this law differently at different times, so it is plausible that both of his students were telling the truth.
Bar Kappara was one of the last tanna’im, a student of Rabbi Yehuda HaNasi (Rebbe) and a friend of Rabbi Chiya. We are never told his first name, although some suggest that his father was Rabbi Elazar ha-Kappar, who died before he was born, and that he, too, was named Elazar. He was knowledgeable in both Torah (he authored a collection of baraitot known as Mishnat bar Kappara) and in general knowledge, which is why he was sent on several occasions as the Jewish emissary to the Roman government. Almost all of the first-generation Amoraim in Israel were his students. He was known as a satirist with a healthy sense of humor, and even offered critique that extended to Rabbi Yehuda HaNasi and his family, which may explain why – his close relationship with Rebbe notwithstanding – he did not receive Rabbinic ordination until after Rebbi’s death.
Today’s Daf Yomi is dedicated in honor of the yahrzeit of Morris Lewy (19 Sivan)
A Jewish wedding is made up of two parts – kiddushin (betrothal) and nesu’im (marriage). Although it is called betrothal, kiddushin is not just a commitment to marry – it is actual marriage. For example, if the couple chooses not to complete the marriage with nesu’im, they will need a formal get (divorce). In the time of the Mishna, these two parts normally took place about a year apart, in order to give the bride and groom time to prepare for the wedding and for their marriage, but today they are done one after the other at the wedding ceremony.
One of the reasons that the tradition changed is concern over the period during which the couple is married but not yet living together.
Our Mishna presents a uniquely disturbing case that stems from this situation. Two men offer kiddushin to two women, but at the time of the nesu’im the women are switched and each ends up sleeping with the wrong spouse. In such a case, they would all need to bring a korban chatat – a sin-offering. The Mishna adds that there may be reason to obligate the parties involved in more than one korban chatat, if, for example, the men were brothers or the women were sisters.
In any case, assuming that the exchange was accidental (the Gemara rejects the possibility that the case in the Mishna could be talking about people who switched spouses on purpose, saying midi be-reshi’i askinan!? – does the Mishna talk about evil doers!?), the proper wives would be returned to their respective husbands and obligated to wait a three month period, in order to ascertain whose children the women are pregnant with, should it turn out that one or both of them conceive. The three months – a period called havchanah (literally “a period of distinction”) – are essential, both to clarify who is the true father and to determine whether the baby who is born is to be considered a mamzer – a child born from an adulterous or incestuous relationship.
On yesterday’s daf, we learned the case in the Mishna where two men offer kiddushin to two women, but at the time of the nesu’im (marriage) the women are switched and each ends up sleeping with the wrong spouse. Aside from the korban chatat (sin-offering) that they are obligated to bring, the families are obligated to wait a three month period in order to ascertain whose child the women are pregnant with, should it turn out that one or both of them conceive.
Our Gemara questions why this period of three months (havchanah) would be considered necessary, since it is known that a woman will not become pregnant the first time she engages in sexual relations. In answer, Rav Nachman suggests that the couples engaged in more than one act of relations and that the suspicion is that conception took place in a later act of relations.
Rava questions the very basis of the question, pointing out that there are known cases of virgins who had become pregnant the first time they engaged in sexual relations. Rav Nahman responded with the explanation that these women prepared themselves in advance by removing their hymen, which allowed them to become pregnant the first time they engaged in relations.
The arguments of the Gemara notwithstanding, modern medical opinion is that there is no physical impediment that would keep a woman who is a virgin from becoming pregnant the first time she has sex. Nevertheless, it is not unreasonable to assume that there are both physical and psychological barriers that lessen the likelihood of a woman becoming pregnant under such circumstances. The testimony of the Gemara about certain women who “prepared themselves” to become pregnant the first time they had sexual relations likely means that they not only physically prepared themselves, but that they also prepared themselves emotionally for the intimacy of the sexual act.
When learning the Mishna (33b) we were introduced to the concept of havchanah (literally “a period of distinction”), which is a period of time that we obligate a woman to wait before getting married when it is necessary to clarify whether she is already pregnant from another man. According to a baraita quoted on our daf, Rabbi Yehuda also applies this rule to the cases of women who convert, are freed from captivity, or are released from slavery. In all of these cases, Rabbi Yehuda rules that we must be concerned that these women engaged in sexual relations in their former situations – perhaps against their will – and thus may be pregnant. Therefore, we obligate them to wait three months before they can marry. Rabbi Yossi, on the other hand, permits them to marry immediately.
Rabbah explains Rabbi Yossi’s position by saying that since these are all cases where the woman does not want to become pregnant, she will likely use a mokh – an absorbent barrier in her vaginal canal that will keep her from conceiving. Abayye objects that this will not work in all of the cases. The woman who was a captive, for example, could not possibly be able to prepare herself in such a way before she was raped. Abayye suggests that Rabbi Yossi relies on the fact that the women turned themselves over in order to keep the semen from fully entering, so we need not be concerned that they became pregnant. Rabbi Yehuda is concerned that they do not turn themselves over well enough, and they may become pregnant anyway, their best efforts notwithstanding.
From a medical standpoint, “turning over,” as described by Abayye, would have no effect whatsoever on the chances of pregnancy. It is likely that Abayye’s intention is not simply for the women to turn over, but to take all possible preparations in order to avoid pregnancy, including herbs, drugs and so on. Rabbi Yehuda’s concern is that there are few methods that can be used at the conclusion of sexual relations which can guarantee that no pregnancy will result.
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.