Babylonian Talmud: Tractate Yebamoth

Folio 52a

Is this an illustration of a letter of divorce after a letter of divorce?¹  Rab Judah replied it is this that was meant: [The illustration of] A LETTER OF DIVORCE AFTER ANOTHER LETTER OF DIVORCE and OF A MA'AMAR AFTER AN OTHER MA'AMAR is as stated;²  but³  HOW IS THE RELEASE [FROM THE LEVIRATE BOND EFFECTED] where there is one levir and one sister-in-law? — IF A LEVIR ADDRESSED A MA'AMAR TO HIS SISTER-IN-LAW AND SUBSEQUENTLY GAVE HER A LETTER OF DIVORCE, IT IS NECESSARY FOR HER TO PERFORM THE HALIZAH WITH HIM.⁴

IF HE ADDRESSED TO HER A MA'AMAR AND THEN COHABITED WITH HER, BEHOLD THIS IS IN ACCORDANCE WITH THE PRESCRIBED PRECEPT. Might it be suggested that this provides support for R. Huna? For R. Huna stated: The precept of marriage with a sister-in-law is properly performed when the levir first betroths, and then cohabits with her.⁵  — One might read,⁶  THIS IS also IN ACCORDANCE WITH THE PRESCRIBED PRECEPT. Is not this obvious? — It might have been presumed that since a Master stated, 'If the levir addressed a ma'amar to his sister-in-law, the levirate bond disappears, and he comes under the bond of betrothal and marriage',⁷  he⁸  is not performing the commandment,⁹  hence we were taught [that he does].

[To turn to] the main text. 'R. Huna said: The precept of marriage with a sister-in-law is properly performed when the levir first betroths and then cohabits with her. If he cohabited with her, and then addressed to her a ma'amar a kinyan is nevertheless constituted.' 'If he cohabited with her and then addressed to her a ma'amar is so obvious,¹⁰  since he had acquired her by the cohabitation!¹¹  — Read, rather, 'If he cohabited with her without previously addressing to her a ma'amar a kinyan is nevertheless constituted'. But was it not taught that the penalty of flogging¹²  is inflicted upon him?¹³  — Chastisement¹⁴  was meant, which is a Rabbinical penalty.¹⁵  For Rab ordered the chastisement¹⁶  of any person who betrothed by cohabitation,¹⁷  who betrothed in the open street,¹⁸  or who betrothed without previous negotiation;¹⁹  who annulled a letter of divorce,²⁰  or who made a declaration against a letter of divorce;²¹  who was insolent²²  towards the representative of the Rabbis,²³  or who allowed a Rabbinical ban upon him to remain for thirty days and did not come to the Beth din to request the removal of that ban; and of a son-in-law who lives in his father-in-law's house. [You say,] only if he lives,²⁴  but not if he only passes by? Surely, a man once passed by the door of his father-in-law's house, and R. Shesheth ordered his chastisement! — That man was suspected of immoral relations with his mother-in-law. The Nehardeans stated: Rab ordered the chastisement of none of these²⁵  except him who betrothed by cohabitation without preliminary negotiation. Others say: Even with preliminary negotiation; because [such a practice is sheer] licentiousness.

Our Rabbis taught: How is betrothal effected with a ma'amar? — If he gave her²⁶  some money or anything of value.²⁷  And how is it effected by a deed? — 'How is it effected by a deed'? Surely as has been stated:²⁸  If he wrote for her on a piece of paper or on a sherd, although it was not worth even a perutah,²⁹  'Behold thou art be trothed unto me'!³⁰  Abaye replied, It is this that was meant: How is the deed of the kethubah³¹  in a levirate marriage [to be drawn up]? He writes for her. 'I, So-and-so, son of So-and-so, undertake to feed and maintain in a suitable manner my sister-in-law So-and-so, provided that her kethubah remains a charge upon the estate of her first husband'.³²  If, however, she is unable to obtain it from her first husband, provision was made by the Rabbis [that she is to receive it] from the second,³³  in order that it may not be easy for him to divorce her.³⁴

Abaye enquired of Rabbah: What is the law if he gave her³⁵  a letter of divorce and said, 'Behold thou art divorced from me, but thou art not permitted to any other man'?³⁶  The divorce of a sister-in-law being Rabbinically valid, [shall I say that] only a divorce which is valid in the case of a married woman is valid in the case of a sister-in-law, but a divorce which is invalid in the case of a married woman is also invalid in the case of a sister-in-law,³⁷  or [had provision to be made here³⁸  against] the possibility of mistaking it for an unqualified divorce?³⁹  — The other replied: Provision has to be made against the possibility of mistaking it for an unqualified divorce.³⁴  Rabbah b. Hanan demurred: Now then,⁴⁰  had he given her a mere scrap of paper would he also have disqualified her?⁴¹  The other replied: There [the scrap of paper] does not cause the woman to be unfit for a priest;⁴²  here, however, [the qualified divorce] does cause the woman to become unfit for a priest,⁴³  for it was taught, Neither shall they take a woman put away from her husband,⁴⁴  even if she was only divorced from her husband⁴⁵  they may not take her,⁴⁶  and that is what was meant by the 'scent of the divorce' that causes a woman's unfitness for a priest.⁴⁷

Rami b. Hama said: It has been definitely⁴⁸  stated that if a man said to a scribe, 'Write a letter of divorce for my betrothed so that when I have married her I may divorce her' the letter of divorce is valid,⁴⁹  because it was in his power⁵⁰  to divorce her;⁵¹

1. The Sages speak of a letter of divorce another letter of divorce, while the illustration which follows describes a ma'amar that was followed by a letter of divorce!
2. In the Baraitha supra 51a, 'Our Rabbis taught: How … R. Gamaliel's statement etc.' The Mishnah, however, provides no explanation of illustration of these cases, and proceeds to another point.
3. This is the meaning of what follows.
4. V. supra p. 325, n. 4.
5. And ma'amar and betrothal are essentially the same form of kinyan
6. In our Mishnah.
7. Supra 29b. It will be noted that the text there slightly differs from the text here.
8. Because of the ma'amar he had addressed.
9. Of the levirate marriage, even though cohabitation had taken place subsequently.
10. That a kinyan had been effected.
11. What need then was there to state the obvious?
12. Malkoth (v. Glos.) inflicted for the transgression of Pentateuchal negative precepts.
13. For the omission of the ma'amar, prior to his cohabitation, A ma'amar is consequently (v. supra n. 9) a Pentateuchal requirement. How, then, could it be said that a kinyan may be constituted though the ma'amar had been omitted!
14. Makkath marduth, v. Glos.
15. For offences that are not Pentateuchal.
16. Makkath marduth, v. Glos.
17. Regarding such a practice as immoral.
18. V. supra note 3, even if in a legal manner,
19. Regarding such a practice as immoral.
20. Such an act might lead a divorced woman, who was unaware of the annulment, to an illegal marriage.
21. That it was invalid. If he stated, e.g., that he gave it under compulsion.
22. Cf. Rashi a.l. Or, 'who offends'. V. Tosaf. s.v. [H] a.l.
23. A messenger (a) of the Beth din (Rashi); (b) of any Rabbi (Tosaf.).
24. At his father-in-law's.
25. Cases, enumerated supra.
26. The levir to the sister-in-law.
27. And addressed to her the ma'amar in the prescribed form: 'Be thou betrothed unto me by this levirate ma'amar. Though betrothal with money in the case of an ordinary union constitutes perfect kinyan, in the case of betrothal by a levir (to whom a sister-in-law is ordinarily forbidden, and betrothal with whom is consequently invalid) betrothal alone, even when it concerns a levirate union, is not sufficient to constitute a kinyan until consummation of the marriage has taken place.
28. In the case of any other betrothal that is effected by means of a deed.
29. V. Glos.
30. Kid. 9a. As betrothal by money in the case of a levirate union takes the same form as that of an ordinary betrothal so should betrothal by deed!
31. By 'deed' the kethubah (v. Glos.) was meant and not the 'deed of the ma'amar'.
32. The deceased brother (supra 38a) because 'a wife has been given to him from heaven' (v. supra 39a and notes).
33. The levir who married her.
34. Cf. supra 39a.
35. The levir to the sister-in-law.
36. Does such a qualified divorce effect the prohibition of the widow to the levir and to his brother as if an unqualified divorce had been given to her? In the case of a married woman no divorce can release her unless it was free from all qualifying conditions.
37. Hence there is no validity in this divorce, and the sister-in-law remains permitted to the levirs as if no divorce had ever been given.
38. That the divorce is valid despite its qualification (v. supra n. 7).
39. Were the widow to be permitted to the levir after a qualified divorce she might erroneously be permitted even after an unqualified, and valid, divorce.
40. If provision has to be made against mistaking a valid, for an invalid document.
41. From subsequently marrying the levir.
42. Having no validity whatsoever it could never be mistaken for a proper divorce.
43. A priest causes his wife to be forbidden to him even if the divorce he gave her was only a qualified one.
44. Lev. XXI, 7.
45. I.e., if she was given a qualified divorce which does not set her free to marry any other man.
46. Since such a divorce has the validity of causing the woman's prohibition to her husband who is a priest it might easily be mistaken for a valid divorce. Hence the provision mentioned.
47. Git. 82b, infra 94a.
48. Lit., 'behold'.
49. If he gave it to her after marriage.
50. At the time the letter of divorce was written.
51. As his betrothed.

if¹  for any other woman, the letter of divorce has no validity,²  because it was not in his power to divorce her.³  Rami b. Hama inquired, however, what is the law if⁴  for one's sister-in-law?⁵  Is she, because she is bound to him,⁶  regarded as his betrothed⁷  or perhaps, since he addressed no ma'amar to her, she is not so regarded. This is undecided.⁸

R. Hanania inquired: What is the law if he⁹  wrote a letter of divorce in respect of his levirate bond but not in respect of his ma'amar, or in respect of his ma'amar and not in respect of his levirate bond?¹⁰  Is the ma'amar imposed upon the levirate bond,¹¹  so that the levir's action¹²  is like that of divorcing half a woman,¹³  and when a man divorces half a woman his action, surely, has no validity at all; or do they remain independent of one another?¹⁴  — Might not this enquiry be solved by reference to Raba's ruling? For Raba ruled: If he¹⁵  gave her a letter of divorce in respect of his ma'amar, her rival¹⁶  is permitted!¹⁷  — This was obvious to Raba; to R. Hanania, however, it was a matter of doubt. What, then, is the decision? — This remains undecided.¹⁸

IF THE LEVIR SUBMITTED TO HALIZAH AND THEN ADDRESSED TO HER A MA'AMAR. Rab Judah said in the name of Rab: This¹⁹  is the view of R. Akiba who holds that betrothal with those whose intercourse involves the penalties of a negative precept is of no validity; the Sages, however, maintain that there is some validity in acts after halizah. But how can you ascribe it²⁰  to R. Akiba? In the first section, surely, it was stated, IF THE LEVIR GAVE HER A LETTER OF DIVORCE AND THEN ADDRESSED TO HER A MA'AMAR, IT IS NECESSARY FOR HER TO OBTAIN [A SECOND] LETTER OF DIVORCE AND TO PERFORM THE HALIZAH, while if [this Mishnah represented the view of] R. Akiba would a ma'amar to her be valid after a letter of divorce had already been given to her? Surely it was taught: R. Akiba said, 'Whence is it deduced that if a man gives a letter of divorce to his sister-in-law she is thereby forbidden to him for ever? Because it was stated Her former husband, who sent her away, may not [take her again to be his wife],²¹  [i.e., immediately] after sending her away'!²²  R. Ashi replied: A divorce given by levirs is only Rabbinically valid,²³  and the Scriptural text is a mere prop.²⁴

Likewise it was also taught: Rabbi said, this statement²⁵  was made only in accordance with the view of R. Akiba who treated a haluzah as a forbidden relative;²⁶  the Sages, however, maintain that there is some validity in acts after halizah; and I say, 'When [is betrothal after halizah valid]? Only when he betrothed her as in ordinary matrimony,²⁷  but if he betrothed her for levirate union,²⁸  there is no validity in any such act after the halizah.²⁹

It was taught elsewhere: If a man submitted to halizah from his sister-in-law and then betrothed her, Rabbi said, 'If he betrothed her as in ordinary matrimony it is necessary for her to obtain from him a letter of divorce, but if as for a levirate union there is no need for her to obtain from him a letter of divorce'. The Sages, however, said: 'Whether he betrothed her as in ordinary matrimony or as for the levirate union it is necessary for her to obtain from him a letter of divorce'.

Said R. Joseph: What is Rabbi's reason?³⁰  — It was given the same legal force as that of the action of a person digging in the estate of a proselyte³¹  believing it to be his own,³²  which constitutes no kinyan.³³  Said Abaye to him:³⁴  Are the two cases alike? There³⁵  he³⁶  had no intention at all of acquiring possession,³⁷  but here³⁸  his intention, surely, was to acquire possession!³⁹  This, indeed, could only be compared to the case of a person who digs in the estate of one proselyte and believes it to be that of another, where he does acquire possession!⁴⁰  No, explained Abaye, here we are dealing with a case where the levir said to her, 'Be thou betrothed to me by the ma'amar of the levirate union'. Rabbi is of the opinion that the ma'amar can only be imposed upon the levirate bond,⁴¹  but here⁴²  the halizah had already previously removed the levirate bond.⁴³  The Rabbis, however, are of the opinion that the one is independent of the other.⁴⁴  If, then, the levir had said to her at first,⁴⁵  'Be thou betrothed unto me by this ma'amar of the levirate union', would not his kinyan have been valid?⁴⁶  Consequently it is now also valid.

Raba said: Had he said to her,⁴⁷  'By the ma'amar of the levirate union', there would be no disagreement [among the authorities] that it is valid; but here⁴⁸  we are dealing with a case where the levir said, 'Be thou betrothed unto me by the bond of the levirate'. Rabbi is of the opinion

1. The scribe was asked to write the letter of divorce.
2. Even if it was given to the woman after he had married her.
3. Since at that time she was to him a complete stranger.
4. The scribe was asked to wrote the letter of divorce.
5. The letter of divorce having been written before the levirate marriage, and delivered to the widow after it had taken place.
6. By the levirate bond.
7. And the divorce is consequently valid.
8. Teku, v. Glos.
9. A levir after he addressed a ma'amar to his sister-in-law.
10. Is she thereby forbidden to him as if a valid divorce had been given to her?
11. And becomes united with, and inseparable from it.
12. In severing the bond or annulling the ma'amar.
13. Since the divorce in respect of his one connection with the woman has no validity in respect of his other connection which forms together with the first one complete whole.
14. Lit., 'that stands alone' (bis). The ma'amar and the levirate bond constitute separate and independent connections between the levir and the widow. Hence, if the divorce was for the levitate bond alone, the widow is forbidden to the levir who gave her the divorce (under the prohibition 'that doth not build etc.') as well as to his brothers (the levirate bond saving been severed); and if the divorce was for the ma'amar only, the widow, though forbidden to the levir who gave her the divorce (for the reason stated), is nevertheless permitted to his brothers, since the levirate bond has never been severed.
15. The second of three brothers who had addressed a ma'amar to the first brother's widow. V. Mishnah supra 31b.
16. The second brother's first wife who, while the ma'amar remained in force, was forbidden to the third brother.
17. To the third surviving brother if the second brother also died without issue. The two widows, owing to the divorce which had annulled the ma'amar, are no longer rivals; and being now the widows of two different brothers, are in fact both permitted to the third brother. The widow to whom the divorce had been given is forbidden only as a preventive measure (v. supra 32b). From the fact, however, that the second brother's first wife is permitted to the third surviving brother it follows that the divorce (a) annuls the ma'amar and (b) does not sever the levitate bond. Had it not annulled the ma'amar, the widow would have been forbidden owing to the levitate bond emanating from two levirs; while if the levirate bond also had been severed she would have been forbidden to the third brother as 'brother's wife'. Why then was R. Hanania doubtful on the point?
18. Teku, v. Glos.
19. That no act is valid after halizah.
20. The quoted section of our Mishnah, and presumably all our Mishnah.
21. Deut. XXIV, 4.
22. Even before she had been married to a second husband. (V. Deut, XXIV, 2-4). The superfluous expression 'who sent her away' implies that divorce in a certain case, viz., in that of a sister-in-law, causes the permanent prohibition of the divorced woman to the man who divorced her immediately after divorce had taken place. Now, since betrothal of a sister-in-law by a levir who divorced her is forbidden by the negative precept of Deut. XXIV, 4, how could a ma'amar addressed to her after divorce have any validity?
23. Pentateuchally it has no validity at all.
24. Since the prohibition is not Pentateuchal the ma'amar is obviously valid.
25. That no act is valid after halizah.
26. As no act of betrothal is valid in the case of the latter so is no such act valid in that of the former.
27. By a form of betrothal prescribed in ordinary cases other than those of a levir. Such betrothal is valid even where it involves the transgression of a negative precept.
28. By addressing to her a ma'amar.
29. The halizah having severed the levirate bond, there is no room any more for the levirate betrothal. The action of any levir using it is consequently null and void.
30. For regarding as invalid a betrothal for a levirate union, when ordinary betrothal with the same woman would have been valid.
31. Who was survived by no Jewish heirs. Anyone digging in such ownerless property with the intention of acquiring it gains thereby full legal title thereto.
32. It having been situated in close proximity to his own estate.
33. As the digging (though a legal form of kinyan) is invalid because there was no intention to constitute a kinyan thereby, so also betrothal (though a legal kinyan) is invalid because the levir's intention was not to constitute an ordinary betrothal (which would indeed have been valid) but a levirate betrothal which after a halizah has no validity.
34. R. Joseph.
35. Digging in the estate of a proselyte.
36. The digger.
37. Since he believed the field to be his own.
38. Betrothal by the levirate formula.
39. Of his sister-in-law as his legal wife.
40. Since his intention was to execute by his act a legal kinyan, the mistake he made as to its owner is of no consequence. Similarly, here, the mistake in the nature of the union he was contracting should not affect the legality of the kinyan which he at all events intended.
41. Only where the levirate bond is still in force has the ma'amar the required validity.
42. Where halizah had been performed.
43. Hence the invalidity of the ma'amar.
44. A ma'amar is consequently valid even where no levirate bond exists.
45. Before the performance of the halizah.
46. Certainly it would. The force of the ma'amar irrespective of the levirate bond (v. supra n. 2) would have executed the kinyan.
47. After the introductory formula, 'Be thou betrothed unto me'.
48. The dispute between Rabbi and the Rabbis.