Commentary for Yevamot 4:16

החולץ ליבמתו. הוא מותר בקרובותיה – for it is not Halitzah, for surely, she does not require Halitzah and the female and male relatives of our Mishnah, that is that those who are prohibited upon the man on account of his wife, and the male relatives who are prohibited to the wife on account of her husband.

Introduction This mishnah discusses the case where a yavam performs halitzah, but then the woman who had halitzah is found to be pregnant with the dead husband’s child.

אם אין הולד של קיימא – that he is premature/non-viable birth.

A yavam performs halitzah for his yevamah, and she is subsequently found to be pregnant and she gives birth:
If the child is viable, he is permitted to marry her relatives and she is permitted to marry his relatives, and he does not disqualify her from marrying a priest. If the child is viable, meaning there was no miscarriage, then the halitzah was unnecessary, because only a husband who has no children cause his wives to be subject to yibbum. Since the halitzah was not necessary, all of the results of a man performing halitzah for a woman do not occur. He is permitted to marry her relatives and she is permitted to his relatives [mishnah 7 below will list which relatives are forbidden had the halitzah been necessary]. Furthermore, since the halitzah was unnecessary, she is not disqualified from subsequently marrying a priest, as a regular halutzah (a woman who has had halitzah is).

If the child is not viable, he is forbidden to marry her relatives and she is forbidden to marry his relatives, and he disqualifies her from marrying a priest. If the child was not viable, meaning she had a miscarriage, then the halitzah was necessary. Therefore, all of the results of a valid halitzah do occur. He is forbidden to marry her relatives and she may not marry his. She is considered a halutzah, and therefore she can no longer marry a priest.

וחייבין בקרבן – for he had intercourse with his brother’s wife not in the place of the Mitzvah, and the offspring is kosher whichever way you turn.

Introduction Our mishnah deals with a case where the yevamah is found to be pregnant after having yibbum. In the previous mishnah she was found pregnant after halitzah.

וחייבין אשם תלוי – for everything where people are liable for extirpation for something done willfully, and for something done inadvertently for sin-offering, ae liable for something whether he became conscious [of his transgression] or not, a guilt offering is made when one is in doubt as to the commission of a sinful act (i.e., suspensive guilt-offering).

A yavam marries his yevamah and she is subsequently found to be pregnant, and she gives birth:
If the child is viable, he must divorce her and both are obligated to bring a sacrifice; If the child is viable, then the yibbum was unnecessary, for only the wives of childless husbands must go through yibbum. Not only was the yibbum unnecessary, but the marriage of the yavam to the yevamah was prohibited, for she is the wife of his brother [Marrying one’s brother’s wife is forbidden in all cases except for when yibbum is obligatory]. Therefore, he must divorce her and both must bring a sin-offering for having forbidden relations.

If the child is not viable, he may retain her [as a wife]. If the child was not viable, then the yibbum was valid and he may retain her as a wife. Neither must bring a sin-offering.

If it is doubtful whether it is a nine-months child of the first [husband] or a seven-months child of the second [husband] he must divorce her, and the child is legitimate, and they must bring an asham talui. If it is unclear whether the child was from the first husband, and the pregnancy was full-term, or the child was from the second husband (the yavam) and the pregnancy was only seven months long, then the yavam still must divorce her, lest the yibbum was unnecessary and she is forbidden to him because she is his brother’s wife. The child is not in any way illegitimate, whether or not it was from the first or second husband. Both the man and the woman must bring a sacrifice known as an “asham talui” (a dependent guilt-offering), which is brought when a person does not know whether or not what he did was sinful. In this case he has only transgressed if the child was not his. Note that the mishnah does not talk about an eight-month child. In the ancient world, it was considered impossible for a child born in the eighth month of pregnancy to live. Children born at nine or at seven months could live, but not those born after eight months. The rabbis also believed this “scientific” belief, and hence will often call a child born in the eighth month a “miscarriage”. If the child nevertheless lived, they probably assumed that they had counted the months wrong. The rabbis also developed a theory that there were two different types of pregnancies: a seven month and a nine month. If the child was born at eight months and lived, it must have been a seven month pregnancy that was overdue. If the child was born at eight months and died, it must have been a premature nine month pregnancy.

שומרת יבם = she is waiting and expecting to undergo levirate marriage.

Introduction In order to understand this mishnah, we must understand some background laws concerning a woman’s ownership of property, her dowry and her ketubah. When a man marries a woman he writes her a ketubah (a marriage document). In the ketubah is written the amount of money he will pay her upon divorce or his death. Additionally, some of the dowry that the woman brings into the marriage is written in the ketubah. Dowry can come in two forms. The first form is called “pluckable property” (nikhse melog). This is money that she brings from her father’s house that remain hers and the husband may not use. The husband has rights to the profit earned from this money during the marriage. He has no responsibility for the money. For instance, if she brings in a piece of land, the land is hers but the husband may use the fruits of the land. If the land should be taken by the Romans, he is not responsible to pay his wife the value of the land. Money that she receives as a gift or as an inheritance is part of this category. The second form is “property of iron sheep” (nikhse tzon barzel). This is written in the ketubah and hence the husband has responsibility for it, should the property be lost, stolen or destroyed. The husband may use the property. His sole responsibility is to return the value of the original property upon death or divorce. A wife may not sell either of these types of property without her husband’s permission. Neither may a husband sell the first type of dowry without his wife’s permission, since it is still hers. He may however sell “property of iron sheep”. Our mishnah discusses the status of the shomeret yavam, a widow who is waiting for her yavam to do yibbum or halitzah.

נפלו לה נכסים – from her father’s house.

If a shomeret yavam came into possession of money: Beth Shammai and Beth Hillel agree that she may sell it or give it away, and that her act is legally valid. Beth Shammai and Beth Hillel agree that a shomereth yavam can sell new property that has come into her hands since the death of her first husband. She does not need the permission of the yavam, because he has not married her.

מה יעשו בכתובתה – the [100] Maneh or the two-hundred and the supplement and the dowry that she brought in to him and he accepted responsibility for the surety (i.e., mortgaged property).

If she dies, what shall be done with her ketubah and with property that comes in and goes out with her? Beth Shammai says: the heirs of her husband are to share it with the heirs of her father; Beth Hillel says: the property is to remain with those in whose possession it is, the ketubah is to remain in the possession of the heirs of the husband and the property which comes in and goes out with her remains in the possession of the heirs of her father. If she dies, there is a dispute between the two houses concerning her inheritance. Usually a husband inherits his wife, but in this case she only had a yavam who had not yet performed yibbum. He is not fully her husband. Beth Shammai holds that the heirs of her husband, meaning the yavam who inherits from his dead brother, splits the money with the heirs of her father. The heirs of the father inherit since an unmarried woman is inherited by her father. Beth Hillel does not split the money evenly. Rather, each part of the inheritance remains where it is presumed to be. Since the ketubah, meaning the money paid from the husband to the wife upon death or divorce, is still with the husband’s estate, the husband’s inheritors collect this money. Additionally, the “property of iron sheep” is in her husband’s possession since he has full ownership over it. Therefore, the husband’s owners collect this as well. [This is Albeck’s explanation. The talmud explains that “property of iron sheep” is split between the husband’s and father’s inheritors.] The “pluckable property” is in the wife’s possession, since the husband cannot sell it. Therefore the wife’s father’s inheritors inherit this property.

ובנכסים היוצאין ונכנסין – the wife’s estate of which the husband has the fruition/usufruct without responsibility for loss or deterioration when she enters [into the marriage], they enter with her, and when she leaves from her husband, they go out with her.

בש"א יחלוקו יורשי הבעל עם יורשי האב – for she was doubtfully married and the levir takes possession of one-half of her inheritance from doubt for the husband inherits his wife but this case where she is doubtfully married to him, he takes possession of one-half.

נכסים בחזקתן – mort-main (i.e., the wife’s estate held by her husband, which, in case of her death or divorce, he must restore in specie, being responsible with all his landed property for loss or deterioration (see Tractate Yevamot, Chapter 7, Mishnah 1) in their presumptive legal status, but the School of Hillel did not explain whether the properties were in the possession of the inheritors of the woman or whether her properties were in the possession of the inheritors of the husband, for their surety is upon him, but as regards to law, they are divided, even according to the School of Hillel.

כאשתו לכל דבר – that he divorces her with a Jewish bill of divorce and she does not require Halitzah and he restores her when he desires, and is not forbidden to her.

Introduction This mishnah is the final clause of yesterday’s mishnah, which discusses the shomeret yavam.

על נכסי בעלה הראשון – that the landed property of her first husband will be responsible and vouched on her Ketubah, and if she lacks a Ketubah from her first husband, the levir writes her a Ketubah on his property which is only a Maneh.

If he married her she is his wife in every respect save that her ketubah remains a debt on her first husband’s estate. When the yavam has yibbum with the shomeret yavam, she becomes his wife in every respect. If he wishes to divorce her he must give her a get and she doesn’t require halitzah. He can remarry her after divorcing her (provided she doesn’t remarry in between) and she is not forbidden as “his brother’s wife”. When she dies he inherits her. The only difference between her and a regular wife is that if he dies or divorces her, the ketubah is paid from the estate of the first husband. In any case, the rabbis declared that if the dead brother died penniless, the yavam must pay for her ketubah.

מצוה בגדול ליבם – as we derive from (Deuteronomy 25:6): “The first son [that she bears shall be accounted to the dead brother].”

Introduction Our mishnah answers the question, which of the surviving brothers must or can perform yibbum or halitzah.

The commandment of yibbum is upon the eldest [of the surviving brothers]. If he declines, they pass in turn to all the other brothers. If they decline, they return to the eldest and say to him, “the commandment is upon you; either perform halitzah or yibbum.” As we taught above in chapter two, mishnah eight, the duty of yibbum is incumbent upon the eldest surviving brother. The other brothers should not perform yibbum until their elder brothers have declined the opportunity. However, as we learned there, if a younger brother does perform yibbum before the older brother has a chance to accept or decline, his yibbum is valid. If the eldest brother does not want to perform yibbum, all of the other brothers are given the opportunity, in order of their age. If they all do not wish to perform yibbum, they (perhaps referring to a court) return to the eldest brother and tells him that he must either perform yibbum or halitzah. He is not allowed to leave this woman hanging any longer. The mishnah also teaches that the duty of halitzah is also primarily upon the eldest surviving brother.

ובגדול – for the oldest of the brothers was abroad and he assigns the oldest of the brothers that is before us to state that we should wait for him, for he is older than me.

Introduction This mishnah is a direct continuation of the previous one.

בחרש ובשוטה] – until they recover, we don’t listen to him].

If he wished to suspend [his decision] until a minor becomes of age, or until the eldest returns from a country beyond the sea or [until a brother who was] a deaf-mute or an imbecile [should recover], he is not to be listened to, but is told, “the commandment is upon you; either perform halitzah or yibbum.” . If the eldest brother does not want to perform halitzah or yibbum, but rather wait until a younger brother becomes old enough to have yibbum with this woman, he is not listened to. Rather he is told that he must either perform yibbum or halitzah. The mishnah teaches that it is not fair to the woman to keep her waiting for halitzah. She has the right to be released now, so that she can go and marry whomever she wants. Similarly, if one of the younger brothers wants to wait for an older brother to return from abroad, or recover from deafness or from being an imbecile (this may be some sort of temporary insanity), they do not listen to him and force him to do yibbum or halitzah immediately. Note that a deaf-mute and an imbecile cannot contract yibbum or any type of marriage because they are considered to lack intelligence. As I have pointed out before, in mishnaic times real sign language did not exist, and therefore deaf-mutes could not really communicate. Now that sign language has been developed it is recognized that deaf-mutes do not inherently lack intelligence and they may contract marriage.

עליך מצוה – even though your brother is abroad, he is older than you. Since you ae the oldest of the brothers in our presence, upon you is the Mitzvah [of levirate marriage] for the delay in the performance of the commandment, we do not delay.

הרי הוא כחד מן האחין – and he did not lose his portion because he performed Halitzah for you might think that I would say that he would be fined for since he caused her to lose from [having] levirate marriage for she was disqualified on [his] brothers.

Introduction The first half of this mishnah discusses how the brothers divide the inheritance from the dead brother. The second half of the mishnah teaches that when a man performs halitzah, he is thereafter forbidden to marry his halutzah’s relatives and she is forbidden to marry his.

זכה בנכסי אחיו – and even if he would divorced her on the morrow, for the All-Merciful one stated (Deuteronomy 25:6): “[The first son that she bears] shall be accounted to the [dead] brother,” and he has stood up [and performed his duty].

He who performs halitzah with his yevamah, behold he is regarded as one of the other brothers in respect of inheritance. If the father was living, the estate belongs to the father.
The other brothers are permitted. When a man dies without children, his primary inheritor is his father. If his father is not alive, then his brothers split the inheritance. When a man performs halitzah for his dead, childless brother’s widow, he now reverts to being like one of the other brothers with respect to his dead brothers inheritance. His having performed halitzah does not acquire for him any special rights vis-a-vis the inheritance. If his father was still alive, the father inherits as usual.

נכסים של אב – as it is written (Deuteronomy 25:6): “The first son [that she bears shall be accounted to the dead brother],” just he doesn’t have a first-born son during the life of the father, even the levir doesn’t have it during the lifetime of the father, and such is the Halakha but rather, a man who marries his sister-in-law takes possession of the property of his brother, and even in the place of the father.

He who marries his yevamah acquires his brother’s estate. R. Judah said: in either case, if the father was living the estate belongs to the father. If, however, he performed yibbum, he has now taken the place of his dead brother. Therefore, according to the first opinion in the mishnah, he inherits his brother’s entire estate, even if the father is alive. R. Judah disagrees and holds that if the father is still alive, the father’s right to the inheritance trumps the yavam’s right.

אסור בקרובותיה – as if she is his wife and all of the female relations that are forbidden [to him] on account of the woman is completely his wife, are forbidden for Halitzah according to the Rabbis.

He who performs halitzah with his yevamah, he is forbidden to marry her relatives and she is forbidden to marry his relatives: He is forbidden to marry her mother, her mother’s mother and her father’s mother; her daughter, her daughter’s daughter and her son’s daughter; and also her sister while she is alive. She is forbidden to marry his father and his father’s father; his son and his son’s son; his brother and his brother’s son. Just as a man cannot marry the relatives of his wife or his divorcee, so too, our mishnah teaches, a man cannot marry his halutzah’s relatives and she cannot marry his. The mishnah now lists which relatives are forbidden. These relatives are forbidden even if the halutzah should die, just as they are forbidden to a man should his divorcee die. The list includes her mother, grandmothers, daughter and granddaughters. The yavam may not marry the halutzah’s sister, but this prohibition is only while the halutzah is alive. After she dies he may marry them, just as a man may marry his divorcee’s sister after the divorcee dies. The mishnah teaches that only the brother who performs halitzah is forbidden from marrying her relatives. The other brothers of the deceased brother are not forbidden, since once halitzah has been performed their ties to her have been severed. The halutzah is forbidden to marry his relatives as well. These include his father and grandfathers, his son and grandsons, and his brother and his brother’s son. Note that most of these relatives would have been forbidden to her because of her marriage to the first brother. For instance, she cannot marry the father of the yavam, because he is also the father of her deceased husband and a man may not marry his daughter-in-law, even after his sons death.

בזמן שהיא קיימת – it refers to her sister, and not to the rest of the women forbidden on account of consanguinity.

A man is permitted to marry the relative of the rival of his halutzah but is forbidden to marry the rival of the relative of his halutzah. Although the rabbis declared that a man may not marry the relatives of his halutzah, he may marry the relatives of the rival wife of his halutzah. For instance, if Reuven dies and leaves two wives, Rachel and Tovah (not sisters), and Shimon performs halitzah for Rachel, even though he cannot marry Tovah, for she is the rival wife of his halutzah, he may marry Tovah’s relatives. The final piece of the mishnah presents the following scenario. Reuven dies leaving two wives, Rachel and Tovah, and Shimon performs halitzah for Rachel. Leah, Rachel’s sister was married to Chaim who is not related to Shimon. Chaim has another wife named Chana. Then Chaim dies. Just as Shimon cannot marry Rachel, because she is the relative of his halutzah, so too he cannot marry Chana, for she is the rival wife of the relative of his halutzah. This is how Rashi explains this piece, but there are others who explain it differently.

מותר אדם בקרובת צרת חלוצתו – and we don’t say that the rival/co-wife is like the woman who has undergone Halitzah, that he would be forbidden with the sister of the rival/co-wife of the woman with whom he performed Halitzah, like he is prohibited [to be] with the sister of the woman with whom he performed Halitzah.

ואסור בצרת קרובת חלוצתו – Reuven who performed Halitzah with Leah and Rachel is married to a foreign (i.e. unrelated Jewish) man, and she has a rival/co-wife, and the foreign (i.e., unrelated Jewish) man died, that rival/co-wife is prohibited to Reuven. And the reason for this is at the time when Leah had the Halitzah ceremony performed, she brought Rachel her sister with her to the Jewish court, and the entire world doesn’t know to which of them had Halitzah and there are those who think that to Rachel was peformed Halitzah, and when the rival/co-wife of Rachel gets married, that is the rival/co-wife of the the relative of his Halitzah, they say that the rival/co-wife of his Halitzah married, and they think that Rachl and her rival/co-wife were the wives of his brother, because he did Halitzah to Rachel. But, the sister-in-law does not bring her rival/co-wife with her at the time that she has the Halitzah ceremony performed, therefore, when the sister of her rival/co-wife gets married, we don’t say that it the sister of the woman who had Halitzah that married.

וכן המגרש את אשתו וכו' – In the Gemara (Tractate Yevamot 41a), it raises the question and similarly, you might think, but rather, I would say, that a man who divorces his wife, etc., that the sister of the divorced woman from the words of the Torah, and therefore is exempt from Halitzah and from levirate marriage, but the sister of the woman who underwent Halitzah, according to the words of the Scribes/Soferim, so therefore, she engages in Halitzah does not engage in levirate marriage.

Introduction This mishnah continues to teach that it is forbidden to marry the sister of one’s halutzah.

If he performed halitzah for his yevamah, and his brother married her sister and died, she must perform halitzah but may not be taken in yibbum. If Reuven performs halitzah for Rachel (who had been married to Shimon) and then Levi marries Leah, Rachel’s sister, and then Levi dies, Leah now falls in front of Reuven for yibbum or halitzah. Since Leah is the sister of his halutzah, Rachel, Reuven cannot have yibbum with her. However, since the prohibition of the sister of one’s halutzah is only of rabbinic origin (derabbanan), she must have halitzah and is not totally exempt.

Similarly if a man divorces his wife and his brother marries her sister and dies behold she is exempt from halitzah and from yibbum. Similarly, if Reuven divorces Rachel, and Shimon marries Leah and then Shimon dies childless, Leah is exempt from both halitzah and yibbum, since she is the sister of his former wife. Since this is biblically prohibited, Leah does not even need to have halitzah.

שומרת יבם – she is waiting to perform levirate marriage.

Introduction Mishnah nine continues to discuss various scenarios of yibbum.

שקדש – one of the brothers [who betrothed] her sister after this one fell before them and she became dependent upon all of them.

If the brother of the yavam had betrothed the sister of the shomeret yavam, in the name of Rabbi Judah ben Batera they said: they say to him “Wait until your older brother has done something”. Rachel becomes liable to have yibbum or halitzah with Reuven, her dead husband’s brothers. Before Shimon, the oldest surviving brother does yibbum or halitzah with her, Levi betroths Leah, Rachel’s sister. This is problematic because Leah is the sister of his z’kukah, a woman who is tied to him by her requiring yibbum or halitzah. However, the betrothal is valid. According to Rabbi Judah ben Batera, they tell Levi, the betrother, that he should not fully marry Leah until Shimon (or another brother) has done yibbum or halitzah with Rachel. That would end any ties between Rachel and Levi and allow Levi to fully marry Leah.

המתן – from marrying for she made contact [with the sister of] her levirate connection.

If his brother performed halitzah for her or married her, he may marry his [betrothed] wife. If Levi’s brother does halitzah or yibbum, Levi can now marry Leah.

עד שישה אחיך מעשה – that your brother will marry the sister-in-law or perform Halitzah to her and uproot her levirate relation from you.

If the yevamah died he may marry his [betrothed] wife. If Rachel dies, Levi can marry Leah, for she is no longer the sister of a woman tied to him. The woman who was tied to him is now dead.

מתה היבמה יכנוס את אשתו – for even if he married her and she died, he is permitted to her sister.

If the yavam died, he must divorce his wife with a get and [release] his brother’s wife by halitzah. If Shimon dies, and there are no other brothers, Levi is now in quite a pickle. Levi must perform halitzah or yibbum for Rachel for he is the only surviving brother. However, he cannot do either while he is betrothed to Rachel’s sister Leah. Therefore he must first divorce Leah and then perform halitzah for Rachel. He cannot have yibbum with her because she is the sister of his divorcee. Furthermore, the mishnah teaches that although generally the sister of one’s divorcee is exempt from either yibbum or halitzah (as we learned in yesterday’s mishnah), in this case since the ties to Rachel existed before the betrothal to Leah, Rachel is not exempt.

מת היבם – and no brother remains other than this one who betrothed her sister.

מוציא את אשתו בגט ואת אשת אחיו בחליצה – but not perform levirate marriage for she is the sister of his divorced wife, and in the Gemara (Tractate Yevamot 41a), the legal decision is according to Rabbi Yehuda ben Beteyra.

לא תחלוץ וכו' - In the Gemara (Tractate Yevamot 41b), it explains the reason, as it is written (Deuteronomy 25:7): “But if the man does not want to marry his brother’s widow, his brother’s widow shall appear [before the elders in the gate and declare, ‘My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of the levir’],” but if he desires, he should perform the duty of the levir (i.e., perform levirate marriage). All who go up for levirate marriage go up for Halitzah and all who do not go up for levirate marriage do not go up for Halitzah.

Introduction This mishnah teaches that certain women must wait three months before remarrying in order that there will be no confusion as to whether the subsequent pregnancy is from the previous husband or the new husband.

בתולות – we make the decree because of women who have had sexual relations, and betrothed woman because of married women, and such is the Halakha. And these three months are ninety days excluding from it the day her husband died, or when she was divorced from him, and excluding from it the day when she became betrothed to him.

The yevamah shall neither perform halitzah nor be taken in yibbum before three months have passed [since her husband’s death]. The yevamah may not perform halitzah or be taken in yibbum for three months lest she be pregnant with her first husband’s child. We encountered this problem in mishnayoth one and two of this chapter. There the mishnah dealt with the problems that could occur if she does get married or perform halitzah within this period. Here the mishnah states that in order to avoid those problems, she should wait three months.

הנשואות יתארסו – that the reason that she is forbidden in order to distinguish between the seed of the first to the seed of the second, so that she should not give birth to a undetermined/doubtful son (i.e., so that we would know who the actual father was), a son of seven months [pregnancy] to the first [husband] or doubtfully a son of seven [months] to the latter [husband] and with regard to betrothed women, one doesn’t not have to say this.

Similarly all other women shall be neither be betrothed nor married before three months have passed. Whether they were virgins or non-virgins, whether divorcees or widows, whether married or betrothed. Rabbi Judah said: those who were married may be betrothed [immediately], and those who were betrothed may be married [immediately], with the exception of the betrothed women in Judea, because there the bridegroom was intimate with [his bride]. Rabbi Yose said: all [married] women may be betrothed [immediately] with the exception of the widow because of her mourning. The mishnah now broadens its scope and says that all widows and divorcees should not remarry within three months, again so that it is clear whose child the new baby is. Note that in these cases the only issue is inheritance and status of the child (i.e. is the child a kohen). There are now three opinions in the mishnah as to which women must wait three months. According to the first opinion, all women, even if they were merely betrothed must wait three months. Although generally betrothed women should not have had sexual relations with their husbands, and hence it should be clear that the pregnancy with her new husband is from him, she should still wait. The idea may be that in order not to create confusion, all women wait an equal period. According to Rabbi Judah a woman who was divorced or widowed from a full marriage may be betrothed within three months, because betrothal does not usually entail sexual relations. A woman who was divorced or widowed from betrothal may even be married within three months for the same reason. The only exception is the betrothed woman in Judea. According to this source and Mishnah Ketuboth 1:5, there was a suspicion that in Judea men might have relations with their betrothed wives before proper marriage. Therefore in Judea the betrothed woman is treated like a married woman and she must wait. Rabbi Yose says that all women may be betrothed within three months, but not widows. The reason that widows have to wait (and divorcees do not) is not in order to recognize whose child the new baby is, but because the widow cannot even be betrothed while mourning. We can see in this mishnah that betrothal was seen to be a joyous occasion and that they probably would celebrate it with a party. The Talmud states that this period is one month. Hence divorcees can be betrothed immediately and widows must wait a month. Of course, both would have to wait three months for proper marriage.

והארוסות ינשאו – for she was not made pregnant from the first [husband].

חוץ מארוסה שביהודה – for they would bring together the bride and the groom in Judea prior to their entrance to the wedding canopy in order that he would be used to her and he would sport with her and they would not be embarrassed one from the other through the commanded act of sexual intimacy; therefore, we suspect that perhaps he had sexual intercourse [with her].

כל הנשים יתארסו – because Rabbi Yehuda does not distinguish between widows to divorcees and permits for the widow to be betrothed even within thrirty days of the days of her mourning; Rabbi Yosi comes to dispute him on this and prohibits the widow to become betrothed within thirty days of her days of mourning.

ארבעה אחים וכו' – and the same law applies even also with many wives, if it is possible to support them, permission is in his bands to marry all of them, and the fact that it (i.e., the Mishnah) took four is good advice: for it comes to teach us, for yes, more than that, no, for just as the duty of marital visits at certain intervals arrives during the month.

Introduction Our mishnah teaches that one yavam can perform yibbum for several women if they were widows of different brothers. However, if they were all from the same brother he can have yibbum with only one of them.

ביאתה או חליצתה פוטרת צרתה – and he doesn’t perform levirate marriage with both of them, as it is written (Deuteronomy 25:9): “who will not build up his brother’s house.” One house he builds, but he does not build up two houses. And he doesn’t perform Halitzah with both of them, and whomever does not come up for levirate marrae does not come up for Halitzah, for since that both of them like each other do not go up for lievirate marriage, as we stated, he builds one house,” so also, they don’t go up for Halitzah.

If four brothers were married to four women, and they died, if the eldest [surviving brother] desires he may contract yibbum with all of them. In this case four widows from four different brothers all fall before the same brother for yibbum or halitzah. The mishnah teaches that this one yavam may have yibbum with all of them. The Talmud, however, notes a certain reservation. He is allowed to do so only if he is going to be able to provide well for them all. Bigamy was permitted under Jewish law, but only on the condition that the husband provide equally well for each wife. Also, the Talmud notes that it is not such a good idea to have four wives for there will be much strife in his home. Nevertheless, it is theoretically possible.

חולץ לפסולה – and he will not disqualify that [woman who is] fit [to marry into] the priesthood, for a woman who has undergone Halitzah is disqualified from the priesthood, and a man should not empty the waters of his cistern and others need it.

If a man was married to two women and died, sexual relations or halitzah with one of them exempts her rival. If two women who were married to the same brother fall in front of the yavam for yibbum, he need perform halitzah or yibbum for only one of them. He is not allowed to have yibbum nor halitzah with both.

If one of them was eligible [to marry a priest] and one ineligible [to marry a priest], then if he performs halitzah it should be to her who is ineligible, and if he contracts yibbum it may be with her who is eligible. If one of these two women was already ineligible to subsequently marry a kohen, for instance she was a divorcee from a previous marriage, the yavam should do halitzah with her and not with the other sister. This is because halitzah makes her forbidden to subsequently marry a kohen and there is no reason to needlessly disqualify the eligible widow from marrying a kohen. However, if he is going to do yibbum, he can have yibbum even with the sister eligible to the kohen, since this does not disqualify her from later marrying a priest.

מהחזיר את גרושתו – from whom he was married.

Introduction Our mishnah begins to discuss the definition of a mamzer, the child of an illicit union. The question that is asked is: which illicit unions produce children that are considered mamzers?

והנושא את חלוצתו – since we establish regarding him with the negative commandment (Deuteronomy 25:9): “ [Thus shall be done to the man] who will not build up his brother’s house,” since he did not “build up,” he furthermore will not build up.

A man who remarried his divorced wife, or married his halutzah, or married the relative of his halutzah must divorce her, and the child is a mamzer; the words of Rabbi Akiva. But the Sages say: the child is not a mamzer. They agree that where a man married the relative of his divorcee the child is a mamzer. According to Deuteronomy 24:2-4 if a man divorces his wife and she remarries and then is divorced or widowed, the first husband may not remarry her. As we have seen throughout this tractate a man may not marry his halutzah or the relative of his halutzah (for instance her mother or daughter). Rabbi Akiva says that if the man does transgress and marry one of these women he must divorce her and the child is a mamzer. As we shall see in the next mishnah, Rabbi Akiva holds that the child of any illegal union is a mamzer. The Sages disagree and hold that the child is not a mamzer. As we shall see in the next mishnah, the Sages hold that a union that is a transgression of a negative commandment that is not punished by death or kareth does not create a mamzer. Since these transgressions are not punished by kareth, the child is not a mamzer. Furthermore, the prohibition of the sister of one’s halutzah is only derabbanan (of rabbinic origin) and therefore the child cannot be a mamzer. Marrying the relative of one’s divorcee is biblically prohibited and is punishable by kareth. Therefore the Sages agree with Rabbi Akiva that the child is a mamzer.

והנושא קרובת חלוצתו – since Rabbi Akiva holds that the woman who takes off the shoe and spits in his face (by refusing to perform levirate marriage) is like his wife, and Scripture calls her, “his house,” as it is written (Deuteronomy 25:10): “the family of the un-sandaled one.” And also, Rabbi Akiva holds that there is a Mamzer from those who are liable for violating negative commandments, but this is not the Halakha.

קרובת גרושתו – for his divorced wife is like his wife, and her mother and her sister [if they are subsequently married to him] make him liable for extirpation.

כל שאר בשר שהוא בלא יבא – every nearness which is [a violation of] a negative commandment and even if there is no extirpation [attached to it].

Introduction The first section of this mishnah defines a mamzer. The second section teaches that the prohibition of a wife’s sister (Leviticus 18:18) is only while the wife is still alive, but is effective even if the couple is divorced. However, once the wife dies he may marry her sister.

כל חייבי כרת – but not those who are liable [for violating] a negative commandment, and such is the Halakha. For all that whose prohibition is a prohibition of extirpation, the offspring is illegitimate/Mamzer, except from that of a menstruant woman, but with those who violate negative commandments, the offspring are not Mamzerim/illegitimate.

Who is a mamzer? [The offspring of a union with] any relative with whom cohabitation is forbidden, the words of Rabbi Akiva. Shimon the Yemenite says: [The offspring of any union] for which one is obligated kareth at the hands of heaven; and the halachah is like his words. Rabbi Joshua says: [The offspring of any union] for which one is obligated death at the hands of a court.
Rabbi Shimon ben Azzai said: I found a scroll of genealogical records in Jerusalem, and it was written on it, “So-and-so is a mamzer [having been born] from an adulterous woman”, which confirms the view of Rabbi Joshua. In this section there are three opinions as to which type of forbidden unions create mamzers. Rabbi Akiva’s opinion is the strictest: any forbidden union of an incestuous nature creates a mamzer. This would preclude only forbidden unions that are not incestuous, such as a kohen and a divorcee. Shimon the Yemenite (who is not called rabbi) holds that any forbidden union punishable by kareth creates a mamzer. Shimon the Yemenite rejects Rabbi Akiva and holds that forbidden unions that are merely prohibited but not punishable by kareth or death do not create mamzers. An example of such a case is a shomeret yavam who gets remarried to an outsider without first having yibbum or halitzah with her yavam. According to Rabbi Akiva the child of such a marriage is a mamzer and according to Shimon the Yemenite the child is not. Interestingly, the mishnah explicitly states that the halakhah is according to this view. This is one of the few times that the Mishnah makes such a remark. Rabbi Joshua is even more lenient concerning the creation of mamzers. Only a union punishable by death creates mamzers. Rabbi Shimon ben Azzai claims that he found a scroll of genealogical records in which it was recorded that So-and-so was a mamzer because he was the son of an adulterous affair, which is punishable by death. From here he concludes that the halakhah is like Rabbi Joshua. However, Rabbi Akiva and Shimon the Yemenite could both claim that just because this mamzer was from an adulterous affair punishable by death does not prove that the halakhah is like Rabbi 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 was married to another man and died, he is permitted to marry her sister. If a man’s sister-in-law died, he may marry her sister. If he performed for her halitzah and then she died, he is permitted to marry her sister. This section teaches that the sister of one’s wife is only forbidden during the wife’s lifetime, even after divorce. This is stated explicitly in Leviticus 18:18, “Do not marry a woman as a rival to her sister and uncover her nakedness in the other’s lifetime.” Once the wife dies, whether while the couple is still married, after they are divorced or after her remarriage, the husband may marry her sister. However, if any of these things occur and the wife is still alive, he may not marry her sister. Similarly, a man cannot marry the sister of his yavamah while she is alive, even after he performed halitzah for her. However, after she dies he may marry her sister.