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, Rabbi Shimon ben Azay reported that he found a scroll in Jerusalem that accused King Menashe of having killed the prophet Yeshayahu. Rava comments that that Menashe did not simply murder him, but rather he put him on trial for heresies that appear among his prophecies. Although Yeshayahu could explain each one of them, he chose not to do so because he knew that Menashe would kill him in any case and he preferred that Menashe not be held responsible for murder.
One of the supposed heresies was the following: The Torah says that every person lives out his appointed days (see Shmot 23:26), yet Yeshayahu told King Chizkiyahu that he would have 15 years added to his life (see II Melakhim 20:6). The Gemara on our daf explains that there is a disagreement between Rabbi Akiva and the Chachamim about how to define living out one’s days. Everyone has a designated amount of years, which are referred to as shnei dorot – the years set aside for a person to live in his generation. According to Rabbi Akiva, if he is deserving, he will live out his time; if he does not merit it, however, years may be subtracted from his life. The Chachamim believe that a person’s merit can either add or subtract from the time that is set for him.
The Tosafot ha-Rosh explains that the term shnei dorot is used because God establishes the years of the entire generation, rather than each individual person (see Yeshayahu 41:4). The Geonim offer a different explanation, arguing that shnei dorot refers to the length of time that a person would ordinarily be expected to live, given his health and physical make-up. The Rambam wrote a lengthy treatise in Arabic which offers a synopsis of the different positions on this matter from the perspectives of scholarship and medicine.
The fifth perek of Masechet Yevamot focuses on one main topic – the relationship between the various responses that the surviving brother (the yavam) can perform with the widow (the yevamah). There are four possible responses, two of them taught by the Torah and two suggested by the Sages of the Mishnah:
- bi’ah (sexual relations), which would complete the process of yibum, so that the two would now be married
- chalitzah, the ceremonial rejection of yibum, which would free the widow to marry anyone she wants
- ma’amar, in which case the yavam offers a ring (or another object of value) to the yevamah, mimicking a marriage ceremony. In such a case they have fulfilled yibum on a Rabbinic level
- get (a divorce document), which would preclude the possibility of fulfilling yibum. Even though on a biblical level a get has no meaning in this relationship, the Sages treat the divorce as having enough power to force the yavam and yevamah to choose the option of chalitzah.
What if two or more of these responses are performed by the yavam? What carries more weight – the power of bi’ah and ma’amar to create the relationship, or the power of chalitzah and get to break off or forestall a relationship?
Once either of the two Biblical responses has been performed, there is little question about what has taken place. Yibum creates a full and complete relationship of marriage; chalitzah severs any relationship, allowing the widow freedom to marry outside her first husband’s family. The question is of importance with regard to the two Rabbinic responses – ma’amar and get. Here we find differences of opinion. Does the ma’amar of the Sages establish a full relationship, similar to normal kiddushin? Does it create a partial relationship? Or, perhaps, it does not create any relationship, and its purpose is merely to signify which brother intends to perform yibum at some later time. These are the issues with which our perek grapples.
The Mishnah (50a) teaches that if a yavam (the surviving brother) first performs ma’amar (see daf [page] 51) – offering a ring or another object of value to the yevamah (widow) as though he were marrying her – and then performs normal yibum by engaging in sexual relations with the yevamah, he has fulfilled the mitzvah appropriately. The Gemara on our daf explains that this appears to support the teaching of Rav Huna, who recommends that a yavam should not simply sleep with the yevamah, but rather he should treat the relationship as one that is similar to marriage, beginning with a formal agreement, and only afterwards consummating the marriage with a private, personal act.
In support of this idea, the Gemara brings the ruling of Rav who would punish people who agreed to have kiddushin – the first act of marriage – by means of a sexual encounter, even though this is one of the three methods of which the Mishnah (see Kiddushin 2a) approves. (The other two are kesef – money, or as tradition has it, a ring; and shtar – a legal document.) Similarly, Rav punished people who agreed to kiddushin in the marketplace or without a properly arranged shiddukh.
The reason behind all of Rav’s punishments – as well as Rav Huna’s ruling with regard to yibum – is that, notwithstanding the letter of the law which permits a sexual act to solidify a marriage agreement, such behavior shows a lack of respect for privacy and modesty, which are the very foundations of marriage. Furthermore, agreeing to marry when standing in the marketplace or without proper preparations indicates that this is seen as happenstance and is reminiscent of a “one-night stand” rather than a true marriage.
The idea of shiddukh that appears in the Gemara is originally an Aramaic word whose meaning appears to be “to calm” or “to quiet.” In its borrowed form, it has come to mean to appease or to placate; to persuade. In our context, it indicates an agreement between the man and woman or between their families prior to marriage.
As we have learned, according to the Torah, the basic requirement to fulfill the mitzvah of yibum is for the surviving brother (the yavam) and the widow (the yevamah) to engage in bi’ah – an act of sexual relations – in order to signify the “continuation” of the original marriage. Given the central role played by bi’ah in the fulfillment of this mitzvah, it become essential that we define our terms, both as far as the act itself is concerned, but also with regard to the intention of the participants in this act. Must they intend to fulfill a mitzvah with this bi’ah, or is the sexual act itself enough?
The first Mishnah in the perek opens with the simple assertion that a sexual act between a yavam and a yevamah will be effective, even if either one – or both – participated accidentally, or even if they were forced to do so. This is true whether or not there is full penetration, with no distinction between one act of bi’ah and another. The Mishnah concludes that these rules are true not only in the case of yibum, but also in other laws that involve issues of sex, including cases of ervah (adulterous or incestuous relationships) and those involving less severe forbidden sexual relationships (e.g. a kohen marrying a divorcee).
Rabbi Yosef Rapp, in his Yosef Lekach, asks why these rules are examined in Masechet Yevamot. He argues that it would have been more logical to have listed and examined them in Masechet Makkot, where the laws of forbidden sexual relationships are discussed, and then applied those rulings to the laws of yibum, as well. He answers that yibum has a number of unique issues that could not be understood from a comparison to forbidden sexual acts. For example, given that yibum focuses on continuing the name of the brother who had passed away, we may have thought that only a sexual act that potentially could have led to pregnancy would have been significant. Thus we need to be taught that, even in the case of yibum, any sexual act will suffice to fulfill the mitzvah.
The passage in the Torah that is the source for the mitzvah of yibum is found in Sefer Devarim (25:5), which describes how, in the event that a man dies with no children, his widow should not marry an outsider, but rather yevamah yavo aleha, u-lekahah lo le-isha, ve-yibmah – the surviving brother should come upon her, and take her as a wife, fulfilling the mitzvah of yibum with her.
Our Gemara brings a number of possible derashot – derivations of halakhah – from this passage, attempting to learn unique teachings from each clause in the pasuk without using any clause more than once. It should be noted that the Talmud Yerushalmi also derives laws (some the same and some different than ours) from this passage, without concern that the clause has already been used for a different teaching.
Examples of laws that our Gemara derives from this passage include:
- that the performance of yibum is the fulfillment of a mitzvah
- that the sexual act will accomplish yibum, whether or not it was done with intent
- that any sexual act, whether “natural” or “unnatural,” will complete the yibum.
Based on the first principle mentioned above, several poskim rule that the yavam (the surviving brother) should make a blessing before performing yibum, since the performance of every mitzvah requires a bracha beforehand (see Shulchan Arukh, Even ha-Ezer 166).
In answer to the question of why we need a specific teaching for the idea that any sexual act whether “natural” or “unnatural” will complete the yibum, given the general principle that halakha always treats any act of sexual intercourse as having halakhic significance, the Ramban suggests that we may have thought that yibum should be an exception to that rule. Given that yibum focuses on continuing the name of the brother who had passed away, we may have thought that only a sexual act that potentially could have led to pregnancy would have been significant. Thus we need to be taught that even in the case of yibum any sexual act will suffice to fulfill the mitzvah.
The need to define the act of bi’ah (sexual intercourse) is essential in order to know when that significant act has taken place in a number of halakhic settings. Our Gemara suggests that in the vast majority of cases, the definition is ha’arah – a simple act of touching (in Shmuel’s words, “a kiss”). Although the focus of the Gemara is on the male organ, it appears that the conclusion is clear: penetration – of even miniscule proportions – of the man into the woman.
The Gemara suggests that the source for this is the case of a shifchah charufah (see Vayikra 19:20), where the Torah specifies that the act is significant only if there is a complete act of sexual relations, implying that in other cases even much lesser sexual contact would be considered to be significant. [Rashi interprets the case of shifchah charufah as one where a non-Jewish maidservant is engaged to a Jewish slave – a relationship clearly permitted by the Torah. Other rishonim argue that Rashi is quoting only the opinion of Rabbi Yishmael, but we follow Rabbi Akiva, who explains that the case is one where a non-Jewish maidservant was owned jointly by two people, one of whom set her free, thus creating a situation where she is half-slave and half-free.]
Be that as it may, the Gemara brings a series of cases, each of which must be compared to the other so that the rule of ha’arah can be applied to each one. Thus the Gemara derives that
- forbidden sexual relations,
- forbidden sexual relations between a kohen and someone who he cannot marry,
- the case where a yevamah (widow) marries an outsider before being freed by halitzah,
- the case of yibum when the mitzvah is fulfilled, and
- the case of normal marriage
will all be accomplished by means of a sexual act, even if that act is only ha’arah.
The last case – that of normal marriage – refers to a case where a couple gets married via an act of bi’ah. Our Gemara clearly teaches that, from a technical standpoint, this case is identical to the other ones. Once ha’arah takes place, a significant sexual act has occurred, and the couple has successfully wed. The rishonim are quick to point out that this conclusion stands in contradiction with the Gemara in Masechet Kiddushin (10a) that deals with the same case. There the Gemara says that a person embarking on a sexual relationship has in mind a complete act of sexual intercourse, and ha’arah would not suffice. Several suggestions are raised to deal with this seeming contradiction. One approach is suggested by the Ri”f, who argues that we must distinguish between kiddushin – the first act of marriage – that demands a completed sexual act, and nisu’in – which completes the marriage ceremony, where ha’arah will suffice.
Under ordinary circumstances, if a married woman is raped, the halakha recognizes that the forbidden sexual act happened against her will and she remains permitted to her husband. A particularly painful situation arises if the woman who is raped is married to a kohen. In such a case halakhah requires the couple to divorce, since as a kohen, the husband is not allowed to be married to a woman who has had a forbidden sexual encounter – which has happened to his wife, even though it was not her fault in any way.
Our Gemara quotes a teaching of Rav Sheshet, which says that if a married woman whose husband was not a kohen was raped, even though she can remain married to her husband, she cannot marry a kohen in the future, should she become widowed. This discussion revolves around the way the Sages define the term zonah – one of the women that a kohen cannot marry (see Vayikra 21:7). Although the term zonah usually is translated as a harlot – a woman who makes herself available to men for sexual pleasure – it is clear that the Sages did not understand the term in that way. As noted above, they defined a zonah as a woman who has had a sexual encounter with someone who is forbidden to her – i.e. someone who she would theoretically be unable to marry. Nevertheless, this is a distinction to be made between an issur ervah – an incestuous relationship, and eshet ish – an adulterous one. In the former case, the prohibition stems from the inherent personal status, the relationship between the two people; in the latter case the prohibition stems from the fact that she is married to another man, a personal choice that exists as long as the marriage does and can be undone by divorce or by the death of her husband.
Thus, the concept of zonah, as applied to a married woman, is that of a woman who has abrogated the trust and relationship that existed between her and her husband. According to this line of reasoning, it appears reasonable to suggest that a married woman who was raped does not become a zonah at all, since no trust was broken in such a case. Thus the Rashba argues that, were it not for Rav Sheshet’s ruling, we would have permitted a woman who was raped to marry a kohen, since she cannot be considered a zonah.
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.