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 have seen, the commandment of yibum (levirate marriage), allows the wife of a man who dies without offspring to be married by one of his surviving brothers, negating the Biblical prohibition forbidding a man from marrying his brother’s wife. What is the status of their relationship, once yibum has been performed? Are they still seen as connected because of the original marriage to the deceased brother, or are they simply a married couple?
Our Gemara quotes Rabbi Yossi bar Chanina, who understands the passage in Sefer (Book of) Devarim (25:5) to mean that once the yavam takes her as his wife, all of the rules and regulations of normal marriage apply to them. Thus, should the couple choose to get divorced, rather than performing the halitzah ceremony, the husband will divorce his wife with a get, a standard divorce document. Furthermore, should they choose to do so, they can remarry after the divorce, without any concern that the original prohibition of marrying one’s sister-in-law still exists.
Tosafot ask why the Gemara only searches for a source that will allow the yevam and yevamah to remarry after a divorce, without expressing any concern about their ongoing sexual relationship while they are married. Tosafot suggest that it is only the very first act of sexual relations that is the fulfillment of the mitzvah of yibum; from then on their relationship is one of choice. Should the Sages not search for a Biblical passage that clearly permits the marriage to continue after the basic mitzvah is fulfilled?
Tosafot answer that it is an issue of common sense. There is no need to find a pasuk (verse) that clearly permits this, since it would be illogical for the Torah to command someone to engage in sexual relations once and then file for divorce. Another approach is suggested by the Netziv in his Meromei Sadeh who argues that whenever we find that performing a mitzvah pushes aside a prohibition, as long as the person remains involved in that mitzvah he can add to it, even beyond the basic obligation.
The Mishnah (2a) listed the 15 women who – in the event that their husband passes on with no offspring – cannot become a yevamah and marry his surviving brother, due to the fact that they are closely related to him (e.g. if the brother who passed away had married his niece, her father cannot perform yibum with her). Our Gemara presents a question posed by Levi (ben Sisi) to Rebbi (Rabbi Yehuda HaNasi), who asks why the Mishnah only lists 15 women, rather than 16. Rabbi Yehuda HaNasi immediately recognized that the suggestion Levi was making aimed to include the case of anusat aviv – when a man rapes a woman, who becomes pregnant with a son. If the rapist has a son from another marriage, according to the chachamim that son is permitted to marry the woman who was raped (even though he would not be allowed to marry a woman who was legally married to his father – see Vayikra 18:8). If he does so, and dies without children, we could have a situation where the surviving brother’s own mother could potentially be his yevamah!
Rabbi Yehuda HaNasi’s reaction to this suggestion is a blunt ke-medumah li she-ein lo mo’ah be-kodkodo – “it appears to me that this man does not have a brain in his skull!” He explains that this unusual case is subject to a difference of opinion between Rabbi Yehuda and the hakhamim, and the Mishnah would not feel a need to include it.
The questioner, Levi ben Sisi, lived in the generation between the Tanna’im and Amoraim, and was a disciple of Rabbi Yehuda HaNasi who redacted the Mishnah. He was also close personal friends with him and with his son, Rabbi Shimon. Nevertheless, it is not uncommon to find (as we do in this story) Rabbi Yehuda HaNasi rebuking him in strong terms. Still we find statements in the Talmud that point to the great respect that Rabbi Yehuda HaNasi had for his student. After Rabbi Yehuda HaNasi passed away, Levi could not find an appropriate teacher, so he moved to Bavel, settling in Neharda’ah and developing a close relationship with Shmuel’s father and with Rav.
As was the case with several of Rabbi Yehuda HaNasi’s students, Levi edited an important collection of baraitot, known as Matnita d’bei Levi.
We have already learned that when a man dies with no children, the Torah commands one of his surviving brothers to perform yibum (levirate marriage). We also learned that there is an option for someone who chooses not to perform this mitzvah, as the Torah allows him to do chalitzah (see Devarim 25:7), a ceremony that releases the woman from her relationship with this family and allows her to marry anyone that she wants.
What if one of the surviving brothers performs the chalitzah ceremony and then chooses to marry his late brother’s wife? Does the original prohibition of marrying one’s sister-in-law remain, or was it removed when the opportunity to marry her through yibum was permissible?
Reish Lakish argues that the punishment of karet – which is the standard punishment for someone who performs an act of incest or adultery – remains intact for all of the brothers, with the exception of the one who performed chalitzah. For that brother, only a simple lav remains, for which he would be liable to receive lashes, but not karet, since the Torah (Devarim 25:9) puts him in the category of an ish asher lo yivneh et bet achiv – a man who refuses to rebuild his late brother’s family – and once he has refused, he is forbidden (on the level of a lav) to do so. For the other brothers the original prohibition – which was much more severe – simply remains.
Rabbi Yochanan rules that the severe punishment of karet no longer exists, neither for the brother who performed chalitzah, nor any of the others. He argues that the brother who performed chalitzah did so as the shaliach – acting as an agent – for the other surviving brothers. Therefore they are all placed in the same situation.
The Rashba explains the disagreement between Reish Lakish and Rabbi Yochanan as being based on the question of how the mitzvah of yibum is to be perceived. According to Reish Lakish, the original prohibition of marrying a sister-in-law remains intact, even in a situation of yibum. Fulfillment of the mitzvah pushes aside the prohibition. Rav Yochanan, on the other hand, views a yibum situation as one that removes the prohibition entirely. Even though chalitzah will still be needed to sever the relationship between the widow and the surviving brothers, there is no longer the potential punishment of karet.
The Mishnah (2a) listed 15 women who – in the event that their husband passes on with no offspring – cannot become a yevamah and marry his surviving brother, due to the fact that they are closely related to him (e.g. if the brother who passed away had married his niece, her father cannot perform yibum with her). Moreover, in the event that her first husband was married to another woman at the same time (a tzarah in the language of the Mishnah), her fellow-wife will not become a yevamah either.
The Mishnah concludes with a limitation to this rule. If the woman who is related to the yavam dies, is divorced or is discovered to be an aylonit, she is removed from the picture and the remaining wife will become a yevamah, should her husband pass away without children.
An aylonit is a woman whose physical makeup will not allow her to have children (the term stems from the word ayil – a male ram – alluding to her lack of femininity). An aylonit does not become a yevamah because the point of yibum, as clearly stated in the Torah, is to bear children in order to keep the dead brother “alive” (see Devarim 25:6, which states that the first child to be born will be named for the late brother).
The Gemara on our daf (page) quotes Rav Assi who rules that the tzarah of an aylonit cannot become a yevamah, and, in fact, is forbidden to marry any of the brothers. Apparently Rav Assi believes that we must distinguish between an aylonit who the original husband married with full knowledge of her condition and one who was only discovered to be an aylonit later on. The latter case is the one discussed in the Mishnah. Since the husband was unaware that his wife was an aylonit we can assume that the marriage was to be annulled since it took place under circumstances that he would not have agreed to. When the husband knew that she was an aylonit and accepted that situation, the marriage certainly is a proper one, and neither she nor her tzarah will become yevamot.
On a Biblical level, a father has the ability to arrange a marriage for his daughter while she is still a minor. Although this is not practiced today, there were periods in Jewish history when for financial or security reasons it was important for a young girl to be married to ensure her future or her safety. Based on this rule being mentioned in our Mishnah (2a), the Gemara discusses certain details of such relationships. This is one of the basic sources in the Talmud that deals with issues of birth control.
Rav Beivai taught a baraita before Rav Nachman. Three categories of women may use a mokh (an absorbent cloth) while engaged in marital relations – a minor, a pregnant woman and a nursing woman. The minor, because she might become pregnant and as a result might die; a pregnant woman, because she might cause her fetus to degenerate into a sandal (a formless creature); and a nursing woman, because she might have to wean her child prematurely, which may result in its death. What is the age of such a minor? From the age of eleven years and one day until the age of twelve years and one day. One who is under or over this age must carry on her marital intercourse in the usual manner. This is the opinion of Rabbi Meir. The chachamim say that all women should carry on marital intercourse in the usual manner, and heaven will have mercy on them (i.e. no harm will come to them), based on the passage that states (Tehillim 116:6) Hashem preserves the simple.
The rishonim differ as to how to understand this baraita, and what its implications are for the halakhah. According to Rashi, the discussion is whether a woman can insert a physical barrier into her vaginal canal as a means of birth control. Rabbi Meir’s position is that a woman who has reason to fear that pregnancy will result in a danger to her or to her unborn child is permitted to do so, although it would be forbidden to other women. Tosafot and others reject Rashi’s explanation, arguing that inserting a mokh during relations would be forbidden. They suggest that the mokh is an absorbent cloth that is inserted following sexual relations in an attempt to remove the semen. According to Rabbi Meir, a minor as well as a pregnant or nursing woman would be obligated to use this mokh in an attempt to keep a potentially dangerous pregnancy from developing (a method that is recognized today as being of limited use, if any), while other women would be permitted to do so.
The first Mishnah in Masechet Yevamot (2a) introduced us to the idea that when a woman is married to a man who dies without children, she cannot become the yevamah of the deceased’s brother if she is closely related to him (e.g. if she had originally married her uncle, once he dies she cannot become a yevamah to his brother, i.e. her own father). Furthermore, in the event that her first husband was married to another woman at the same time (a tzarah in the language of the Mishnah), her fellow-wife will not become a yevamah either.
The Mishnah on our daf (page) teaches that only Bet Hillel believes that the tzarah does not become a yevamah. According to Bet Shammai, however, the tzarah is treated independently and will be subject to the rules of yibum and/or chalitzah as if she had been the only wife of the deceased.
While R. Shimon ben Pazi seeks the source of Bet Shammai’s position in the passages that teach the rules and regulations of the mitzvah of yibum and chalitzah, Rava suggests that it stems from the application of a well-known rule in the Talmud – ein issur chal al issur – that when there is an existing prohibition, a second prohibition cannot be added to the first. In our case, when the brother who was destined to die without children married a woman who was forbidden to the future yavam (if he married his brother’s daughter, for example), the prohibition of eishet achiv – of marrying one’s sister-in-law – never takes effect, since this woman is already forbidden to her husband’s brother. Bet Shammai argues that in such a situation this woman is never considered a potential yevamah, and so, her status does not affect her tzarah at all.
One question that is raised about this is why Bet Hillel would reject an explanation that is based on a widely accepted Talmudic rule.
The Ritva argues that this is an exception to the rule according to Bet Hillel, who derives the halakha from a pasuk (verse). Others suggest that there is a basic difference between the opinions of Bet Shammai and Bet Hillel. While Bet Shammai believes that ein issur chal al issur means that the prohibition does not exist in this case at all, Bet Hillel believes that it may not result in punishment, but it still affects the case.
As we learned on yesterday’s daf (page), Bet Hillel believes that if a man was married to two women, one of whom was forbidden to marry his brother, in the event that he dies without children, neither she 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 will be 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.
This agreement is somewhat surprising, since the ramifications of performing yibum when it is forbidden can be severe, including the birth of offspring that may be considered to be mamzerim!
The Gemara first suggests that following the public ruling that Bet Hillel’s positions are the ones accepted by the halakha, perhaps Bet Shammai accepted Bet Hillel’s rulings and did not act on their own positions. Rabbi Yochanan rejects that suggestion, arguing – and illustrating by way of examples – that they not only followed their own rulings, but that they also ruled that way for others!
The conclusion of the Gemara is that both families relied on each other to inform them if the prospective bride or groom was from a marriage that involved a relationship that the other felt was forbidden. With that information there was no problem for them to marry one-another. The Ritva explains that they relied on each other to the extent that if no alert was forthcoming from the other family, it was assumed and accepted that the suggested marriage did not present any problems. The rishonim further explain that even though under ordinary circumstances we are concerned with the conflict of interest that may exist in cases like these, we see from here that we can trust reliable people, even if they take positions different than our own.
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.