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
All of our discussions in Masechet Yevamot open with the premise that the brother who passed away had no children; if he did have children, the mitzva of yibum would never come into effect. The first Mishnah in the fourth perek (35b) presents a situation where the widow is left pregnant. In such a case, we must wait and see whether the unborn child is viable. If she gives birth to a child who lives, there is no need for yibum; if the child does not survive, then the normal rule of yibum will apply.
And what would have to be done in case one of the surviving brothers performs yibum before the child is born? Here, too, the Mishnah distinguishes between a case where the unborn child survives and a case where he or she does not. If the child survives, the yibum was a forbidden sexual act and the couple will need to bring sin-offerings (and, obviously, cannot continue living together). If the child does not survive, we learn retroactively that the act of yibum was appropriate and the couple can continue their married life together.
The Gemara on our daf quotes a baraita that presents the opinion of Rabbi Eliezer, who rules that in such a case the couple will need to get divorced.
Although we do not follow the ruling of Rabbi Eliezer in this case, nevertheless his position deals with some of the basic issues of this topic, so the rishonim examined his statement closely in order to see the ramifications of his position.
Rashi understands that Rabbi Eliezer’s intention is to teach that in such a case the couple will need to separate, and the means to do it will be through a normal writ of divorce, with no need of chalitzah. Thus it appears that Rashi understands that the yibum was successful, but the man is punished for performing yibum at a time that the relationship may have been a forbidden one.
The Rambam, R”id and others suggest that the requirement here is to have a get in addition to the required chalitzah.
The Rashba has an alternative reading of Rabbi Eliezer’s statement that does not include the requirement to divorce her, just a ruling that they cannot continue living together (yotzi rather than yotzi b’get), and he understands that Rabbi Eliezer requires only that chalitzah be performed.
As we have learned on yesterday’s daf, if a widow is pregnant when her husband passes away, there will be no mitzvah of yibum if she gives birth to a viable child. If the child dies, however, and the dead man had no other children, the normal rules of yibum would apply.
How long does a child have to live in order to be considered “viable”?
Rabbi Shimon ben Gamliel teaches that once a child lives for 30 days he is considered a live birth. This teaching implies that a child who dies within the first 30 days after birth is, at best, a safek – that his status is questionable.
The Gemara presents a case where a woman in this situation, i.e. whose child died before 30 days had passed, married someone from outside the family (that is to say, she assumed that she was not obligated in yibum, since she had a child – albeit one who did not live for very long – with her first husband). In such a case, Ravina quotes Rava as ruling that she should have chalitzah done if she married a regular person, but if she married a kohen – who is not permitted to marry someone who had undergone chalitzah – then chalitzah should not be done, since it would destroy the woman’s marriage. Rav Mesharsheya, however, quotes Rava as saying that even if she married a kohen, chalitzah is necessary. Ravina tells Rav Mesharsheya that although Rava had said that in the morning, by the evening he had changed his mind. In response, Rav Mesharsheya says sarcastically “You say it is permitted? Then you can permit forbidden fats (heilev) as well!”
The Tosafot ha-Rosh says that Rav Mesharsheya was arguing that permitting a woman who had had chalitzah to a kohen would lead to other mistaken rulings – like permitting a divorced woman to marry a kohen, as well. The Arukh la-Ner suggests that Rav Mesharsheya was hinting to a Gemara in Masechet Hullin (49a) that kohanim were lenient and permitted certain questionable fats. Thus, Rav Mesharsheya is arguing that someone who is so desirous of helping out kohanim should rule leniently on the subject of cheilev.
When a couple gets married, a ketubah – the agreement that is signed by witnesses delineating the obligations that the husband has towards his wife – is written. When the Mishnah on our daf refers to the ketubah, it means specifically the monetary responsibilities that the husband has accepted in this relationship, and, in particular, the amount of money that he guaranteed to her in the event of divorce or death.
It was traditional for the wife to also bring financial assets into the marriage, which were divided into two –
- Nikhsei melug, which are possessions that remain the property of the woman. While the couple is married, the husband can derive benefit from this property. When the marriage ends, they remain hers, in whatever condition they may be.
- Nikhsei tzon barzel, which are possessions that become the property of the husband. Their value is written into the ketubah, and in the event that their marriage comes to an end – if the husband dies or if they become divorced – the wife will be reimbursed for the full amount, either from the estate if he died or from him if they divorced.
Our Gemara discusses a case where a woman – whose husband had died with no children, but has not had yibum – herself dies. Who receives her inheritance?
Bet Shammai rules that it is divided between her husband’s relatives and her father’s relatives. According to most rishonim, Bet Shammai believes that as a potential yevamah, the woman’s relationship with the family is one of safek – of questionable marriage. Thus we are not sure what to do and divide it in half.
Bet Hillel rules that given the questionable situation, we leave the status quo. Thus, the nikhsei tzon barzel remain in the possession of her father, the ketubah remains with the husband’s family, and the nikhsei melug are divided between the two.
What is to be preferred – yibum or chalitzah?
It appears from the Gemara that there were different historical periods. At first, when the yavam and yevamah had pure intentions, and performed yibum with the intention of fulfilling the mitzvah, yibum was preferable. In later years, when people could no longer be relied upon to have the proper intent, chalitzah became the preferred option.
This most basic question is discussed on our daf, where we find a disagreement between Abba Shaul and the Chachamim. Abba Shaul argues that a person who performs yibum because he finds the yevamah beautiful, because he wants to be married to her or for some other reason (the Rivan suggests that this refers to monetary gain), it is as though he engaged in a forbidden sexual act. The Hakhamim point to the passage (Devarim 25:5) that commands the yavam to “come upon” her, and see no qualifications in the performance of the mitzvah.
It is not clear whether Abba Shaul actually believes that a person who performs yibum with intentions that are not totally pure does not fulfill the mitzvah. The Nimukei Yosef, for example, argues that Abba Shaul accepts the fact that the act of yibum will work, even if it is done with the wrong intentions, and proper intent is only a Rabbinic requirement. From the Ramban, however, it appears that according to Abba Shaul someone who performs yibum with the wrong intent will not be married to her, since the commandment was not properly fulfilled.
There is no clear conclusion in the Gemara with regard to this disagreement. Although it appears that our Gemara leans towards the position of the Chachamim, other Gemarot appear to accept Abba Shaul’s position. During the Gaonic period different communities followed different rulings, with Neharda’a following Abba Shaul and Sura accepting the position of the Chachamim. In modern times rulings differ between Sefardic and Ashkenazic communities. Ashkenazim usually recommend chalitzah, while Sefardim encourage yibum.
We have already learned that when a man dies with no offspring, and his brother performs yibum with the widow, the yavam effectively steps into the position of the brother who has passed away. One example of this idea is that the yavam does not need to have a new marriage ceremony, as we see this marriage as a continuation of the original relationship.
The Mishnah on today’s daf adds another element to this. According to the Chachamim, when a person performs yibum, he takes possession of all of the dead brother’s property. Rabbi Yehuda disagrees, arguing that when someone passes away with no children, it is his father who is first in line to receive his inheritance, and that rule remains in force even in the case of yibum.
This discussion revolves specifically around the possessions of the brother who died. If we are to take the position of the Chachamim to its logical conclusion, the yavam – who now represents his dead brother as well as himself – should also get his brother’s share in any inheritance that is to be divided between the brothers when their father passes away. This is, in fact, the conclusion of the majority of the rishonim. Both the Rambam and the Ramban, however, suggest that only the possessions that are actually owned by the brother when he dies are taken over by the yavam. They derive this from the passage that is used as the source for this law, that the yavam will stand in his brother’s stead – yakum al shem achiv ha-met (Devarim 25:6) – which does not offer him to stand in his father’s stead, only his brother’s. Those who disagree point out that only Rabbi Yehuda makes use of this pasuk in this context.
This is all if the brother performs yibum. Were he to do chalitzah, the Mishnah teaches that he receives only the same share in the inheritance that all of the other brothers do. Although this appears to be obvious, the Gemara explains that we may have thought that someone who performs chalitzah removes himself from anything having to do with this brother, and might lose his share.
We have already discussed the concept of havchanah (literally “a period of distinction”), that it is necessary for a woman to wait three months when moving from one relationship to another in order to clarify who is the true father in the event that the woman becomes pregnant (see daf 33). This rule appears in the Mishnah on our daf, which teaches that a woman whose husband passes away with no children will receive neither yibum nor chalitzah for three months after his death. Furthermore, according to the Mishnah, even in non-yibum situations this rule applies, whether the woman was divorced or widowed, whether the first marriage ended after erusin (betrothal) or nesu’in (full marriage). As we have learned, a Jewish wedding is made up of two parts – kiddushin (betrothal) and nesu’in (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’in, they will need a formal get (divorce). In the time of the Mishnah, 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.
Rabbi Yehuda permits someone whose failed marriage was only at the betrothal stage to get married without waiting three months, since it is reasonable to assume that the couple did not engage in sexual relations during that period. Similarly, even someone whose failed marriage was a full marriage of nesu’in would be allowed to receive kiddushin immediately, since no sexual relations will take place until a later stage in the marriage. An exception would be the community in the southern part of Israel (Yehuda), where it was common practice to allow – and even encourage – a betrothed bride and groom to spend time together before the nesu’in.
The custom in Yehuda to allow the bride and groom to spend secluded time together – which was understood to make it likely that they would consummate their marriage before the concluding ceremony – was a response to a governmental decree in the time of the Mishnah that every Jewish bride was to spend a night with the local Roman governor before her marriage. Although the Gemara in Ketubot records that many efforts were made to avoid this decree, one method was to encourage a romantic, and indeed sexual, relationship between the couple even before the nesu’in.
On yesterday’s daf we discussed the rule of havchanah – waiting three months after one marriage ends before entering another marriage – in order to ensure that we will know who the father of the child is in the event that the woman becomes pregnant. The Gemara on today’s daf quotes a baraita that teaches that we also do not permit a woman to marry immediately if she is pregnant. In this case there is no doubt whose child the woman is carrying, which leads the Gemara to ask why this marriage would be forbidden. The Gemara’s conclusion is that the prohibition stems from the fact that the woman will need to nurse after she gives birth, and an immediate marriage may lead to a new pregnancy, which will ruin her milk, and possibly lead to the infant’s death.
This suggestion leads to an obvious question. If we fear that the newborn will starve to death because the mother is pregnant, shouldn’t the Sages forbid any nursing woman to engage in relations, lest she become pregnant? To this question the Gemara responds that the father of the newborn will be sure to supply eggs and milk as a supplement, something that we cannot be certain he will do for the woman’s child by another man.
The fear that a pregnant woman will not be able to produce milk that will contain the necessary nutrients to feed her infant is not an unreasonable one. In fact, the hormone that is responsible for lactation will often keep ovulation from occurring, offering a type of natural birth control that will keep the case described by the Gemara from occurring very often. With the higher level of nutrition in contemporary society, however, it is not unusual to find nursing women becoming pregnant.
The suggestion that eggs and milk be used as a supplement in this case is understood by most rishonim as being a supplement for the child’s diet, since the mother’s milk will no longer suffice. The Netziv in his Ha’amek She’eila suggests that the fear of a second marriage is not necessarily a concern with pregnancy, but that the responsibilities of married life may take a toll on the mother’s health. By supplementing her diet with eggs and milk, her ability to nurse her baby properly is ensured.
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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