Babylonian Talmud: Tractate Yebamoth

Folio 49a

MISHNAH. WHO IS DEEMED TO BE A BASTARD?¹  [THE OFFSPRING OF A UNION WITH] ANY CONSANGUINEOUS RELATIVE WITH WHOM COHABITATION IS FORBIDDEN;²  THIS IS THE RULING OF R. AKIBA. SIMEON THE TEMANITE SAID: [THE OFFSPRING OF ANY UNION] THE PENALTY FOR WHICH IS KARETH AT THE HANDS OF HEAVEN; AND THE HALACHAH IS IN AGREEMENT WITH HIS VIEW, AND R. JOSHUA SAID: [THE OFFSPRING OF ANY UNION]. THE PENALTY FOR WHICH IS DEATH AT THE HANDS OF BETH DIN.

SAID R. SIMEON B. 'AZZAI: I FOUND A ROLL OF GENEALOGICAL RECORDS IN JERUSALEM, AND THEREIN WAS WRITTEN, SO-AND-SO IS A BASTARD [HAVING BEEN BORN] FROM [A FORBIDDEN UNION WITH] A MARRIED WOMAN',³  WHICH CONFIRMS THE VIEW OF R. JOSHUA.

IF A MAN'S WIFE DIED, HE IS PERMITTED TO MARRY HER SISTER. IF HE DIVORCED HER AND THEN SHE DIED HE IS PERMITTED TO MARRY HER SISTER. IF SHE WAS⁴  MARRIED TO ANOTHER MAN AND DIED, HE IS PERMITTED TO MARRY HER SISTER.

IF A MAN'S SISTER-IN-LAW⁵  DIED, HE MAY MARRY HER SISTER. IF HE SUBMITTED TO HER HALIZAH AND THEN SHE DIED, HE IS PERMITTED TO MARRY HER SISTER. IF SHE WAS MARRIED⁶  TO ANOTHER MAN AND THEN DIED HE IS PERMITTED TO MARRY HER SISTER.

GEMARA. What is R. Akiba's reason? — Because it is written A man shall not take his father's wife and shall not uncover his father's skirt,⁷  he shall not uncover the skirt which his father saw; and he⁸  holds the same opinion as R. Judah who said that this Scriptural text⁷  speaks of a woman whom his father had outraged,⁹  and who is classed among those forbidden to him under the penalty for a negative precept;¹⁰  and since close to this [text occurs the commandment], A bastard shall not enter the assembly of the Lord,¹¹  it is obvious that the offspring of any such union¹²  is deemed to be a bastard. According to R. Simai also who includes¹³  [the offspring of] any other union that is forbidden by a negative precept even though [the offenders are] not consanguineous relatives,¹⁴  and according to R. Yeshebab who includes¹³  even the offspring of a union forbidden under a positive commandment,¹⁵  the deduction¹⁶  is made from And … not.¹⁷

And Simeon the Temanite?¹⁸  — He holds the same opinion as the Rabbis who stated that the text¹⁷  speaks of a woman¹⁹  awaiting the levirate decision of his father,²⁰  the union with such a woman²¹  being forbidden under the penalty of kareth; and since close to this text appears. A bastard shall not enter,¹¹  it proves that the offspring of a union forbidden under the penalty of kareth is deemed to be a bastard.

And R. Joshua?²²  — The All Merciful should have written²³  'Shall not uncover' only!²⁴  What need was there for 'Shall not take'?²⁵  Must it not, consequently. be concluded that it is this that was meant:²⁶  [The offspring] of [a union with her who is explicitly mentioned between] 'Shall not take' and 'Shall not uncover'²⁷  is deemed to be a bastard, but no others²⁸  are to be regarded as bastards.²⁹

Abaye said: All agree that if one cohabited with a menstruant

1. V. Deut. XXIII, 2.
2. Under the penalty of flogging (incurred for the infringement of a negative precept).
3. Such a union is punishable by death at the hands of Beth din,
4. After her divorce.
5. The widow of his brother who died without issue.
6. After the halizah.
7. Deut. XXIII, 1.
8. R. Akiba.
9. Not his lawful wife. Infra 97a.
10. Flogging (v. supra note 1).
11. Deut. XXIII, 3.
12. Forbidden under the penalty for a negative precept (v. supra p. 321, n. 1).
13. In R. Akiba's category of bastards.
14. Keth, 29b, Kid. 68a, the marriage, e.g., with one's divorced wife.
15. The union, e.g., with an Edomite or an Egyptian (v. Deut. XXIII, 8-9) the prohibition of which is derived from the positive precept. The third generation that are born unto then, may enter into the assembly of the Lord (ibid. 9) from which it follows that only the third generation may enter; but not the first, or the second generation. Any prohibition that is derived from a positive precept has only the force of a positive precept and dues not involve the penalty of flogging, much less that of kareth. V. Keth. 29b.
16. That these categories are also classed as bastards.
17. Deut. XXIII, 1b.
18. Whence, in view of R. Akiba's deduction, dues he derive his ruling in our Mishnah?
19. Whose husband died without issue.
20. Who most decide whether to contract with her the levirate marriage or to submit to halizah from her.
21. As one's father's brother's wife.
22. Whence does he derive his ruling in out Mishnah?
23. If the text of Deut. XXIII, 1b speaks of a woman outraged by one's father (as R. Judah maintains) or of a widow awaiting the decision of the levir (as Simeon the Temanite asserts).
24. From which text alone R. Judah and the Rabbis could have deduced their respective rulings, while the case of one's father's wife would follow logically by inference a minori ad majus.
25. Cf. Rashal. Cur. edd. insert in parentheses, 'And shall not uncover.
26. By the addition of the text Shall not take.
27. I.e., one's father's wife, forbidden under the death penalty at the hands of Beth din.
28. The offspring of unions which are forbidden under the penalty of kareth or flogging.
29. The proximity of Deut, XXIII, 3 (the text relating to the bastard) to that of v. 1, according to R. Joshua, beats on the case of a father's wife only (v. 2a). The mention of 'shall not uncover' (v. 1b) implies, if it refers to one's father's brother's widow awaiting the levir's decision (the view of the Rabbis and Simeon the Temanite), that cohabitation with her is forbidden to the levir's sun by two negative precepts, those of Lev. XVIII, 24 and Deut. XXIII, 1b; and if it refers to a woman whom one's father has outraged (the view of R. Akiba and R. Judah). the text is required to lay down this very prohibition.

or with a sotah,¹  the child [born from either union] is no bastard.²  'A menstruant', since betrothal with her is valid because it is said, And her impurity be upon him,³  even at the time of her menstruation betrothal with her is valid.⁴  'A sotah' also, since her betrothal is valid.⁵  It has been taught likewise: All agree that if one cohabited with a menstruant or with a sotah or with a widow awaiting the decision of a levir, the child [born from any such union] is no bastard.⁶  And Abaye?⁷  — He was in doubt in the case of a widow awaiting the decision of the levir as to whether [the law⁸  is] in agreement with Rab or with Samuel.⁹

SAID R. SIMEON B. AZZAI etc. [A tanna] recited: Simeon b. 'Azzai said, 'I found a roll of genealogical records in Jerusalem and therein was written "So-and-so is a bastard [having been born] from a forbidden union with] a married woman" and therein was also written "The teaching of R. Eliezer b. Jacob is small in quantity¹⁰  but thoroughly sifted".¹¹  And in it was also written, "Manasseh slew Isaiah"'.

Raba said: He¹²  brought him to trial and then slew him. He¹²  said to him: Your teacher Moses said, 'For men shall not see Me and live'¹³  and you said, 'I saw the Lord sitting on a throne, high and lifted up'.¹⁴  Your teacher Moses said, 'For what [great nation is there, that hath God so nigh unto them], as the Lord our God is whensoever we call upon him',¹⁵  and you said, 'Seek ye the Lord when he may be found'.¹⁶  Your teacher Moses said, 'The number of thy days I will fulfil'¹⁷  but you said, 'And I will add on to your days fifteen years'.¹⁸  'I know', thought Isaiah, 'that whatever I may tell him he will not accept; and should I reply at all, I would only cause him to be a wilful [homicide]'. He thereupon pronounced [the Divine] Name and was swallowed up by a cedar. The cedar, however, was brought and sawn asunder. When the saw reached his month he died. [And this was his penalty] for having said, 'And I dwell in the midst of a people of unclean lips'.¹⁹

[Do not] the contradictions between the Scriptural texts, however, still remain? — 'I saw the Lord',²⁰  [is to be understood] in accordance with what was taught: All the prophets looked into a dim glass,²¹  but Moses looked through a clear glass.²²  As to 'Seek ye the Lord when he may be found [etc.'] one [verse]¹⁶  applies to an individual,²³  the other²⁴  to a congregation. When [is the time for] an individual? — R. Nahman replied in the name of Rabbah b. Abbuha: The ten days between the New Year²⁵  and the Day of Atonement.²⁵  Concerning the number of thy days I will fulfil,²⁶  Tannaim are in disagreement. For it was taught: The number of thy days I will fulfil²⁶

1. [H], a woman known to be, or suspected of being faithless to her husband. V. Num. V, 22ff. Such a woman is forbidden to her husband under the penalty of flogging. (V. supra 11b).
2. Even R. Akiba admits in the latter case though the penalty is flogging (v. supra n. 5), and even Simeon the Temanite admits in the former case though the penalty is kareth.
3. Lev. XV, 24; emphasis on him.
4. The offspring of a forbidden but valid union cannot be considered a bastard.
5. Her certain or suspected adultery does not annul her original betrothal to her husband (Rashi) or alternatively, the betrothal of a sotah by her husband after he had divorced her is valid (Tosaf. s.v. [H] a.l.).
6. Kid. 68a.
7. Why did he omit the mention of the third case?
8. As to the validity of her betrothal by a stranger.
9. The former regards such betrothal as in. valid and maintains that no divorce is required, while the latter holds that a divorce is necessary (infra 92b). Being uncertain of the validity of such betrothal Abaye could not determine the legitimacy of the child,
10. [H] a small measure of capacity (v. Glos.). His rulings in the Mishnah and Baraitha ate only few.
11. [H] lit., 'clean', 'pure'. The halachah is always in agreement with R. Eliezer b. Jacob's rulings.
12. Manasseh.
13. Ex. XXXIII, 20.
14. Isa. VI, 1.
15. Deut. IV, 7, implying 'at all time'.
16. Isa. LV, 6 which implies 'but not always'.
17. Ex. XXIII, 26, but will not make any additions.
18. II Kings XX, 6.
19. Isa. VI. 5.
20. Isa. VI, 2.
21. In their prophetic visions they, like Isaiah, only imagined that they saw the deity. In reality they did not (v. Rashi).
22. In his prophetic insight he knew that the deity could not be seen with mortal eye.
23. Who may seek the Lord at stated periods only.
24. Deut. IV, 7, implying 'at all time'.
25. V. Glos.
26. Ex. XXIII, 26, but will not make any additions.