Komentarz do Jewamot 11:10

נושאין על האנוסה – for after he raped or seduced a woman, it is permitted to marry her daughter or her mother or her sister, as it is written (Leviticus 20:14): “If a man marries a woman and her mother, ‘[it is depravity],” in all of them it is sated, “lying with/שכיבה “ but here, it states “לקיחה/takes in marriage,” to inform you that the manner of taking [to wife] is what the Torah forbade.

Introduction A man may not marry the relatives of his wife (her mother, her daughter, her sister and some others) and he may not marry his father’s wife or his brother’s wife. Our mishnah discusses whether a man may marry the relatives of a woman with whom he, his father or his son has had intercourse but not married. It also deals with the question of whether or not it is prohibited to have intercourse (but not marriage) with the relatives of one’s wife. We should note that the mishnah refers to two categories of women: one who has been raped and one who has been seduced. This is the common rabbinic way of referring to sex out of the bonds of marriage. The rabbis of the mishnah did not have a single word for extra-marital sex, and therefore referred to it using these terms which were used in other contexts.

רבי יהודה אוסר – as it is written (Deuteronomy 23:1): “No man shall marry his father’s former wife, so as to remove his father’s garment” (i.e., to lay claim to what his father had possessed: Cf. Leviticus 18:8, 20:11, Ezekiel 16:8 and Ruth 3:9). The garment that his father saw, he should not reveal. But the Halakha is not according to the Rabbi Yehuda. But the Sages prohibited those summoned on suspicion of intercourse from the woman. To marry her daughter, or her sister, or her mother or one of her relatives, because she is found with them always, and the come to get accustomed to sin. But if he transgressed and married one of these relatives of the woman he raped or seduced or of the relatives of his wife whom he was suspected of having relations with her, we don’t remove her from his hands. But our Mishnah which teaches: “They marry the kinswomen of a woman who one has raped or seduced,” that applies, even ab initio. We are speaking after the death of the raped or seduced woman, for now, there isn’t a suspicion lest after that he will marry her daughter, he will be faithless with the first.

A man is permitted to marry [the relative] of a woman [whom he has] raped or seduced. Although it is forbidden (according to halakhah it is impossible) to marry the relatives of one’s wife, a man may marry the relatives of a woman with whom he has had intercourse. The Torah forbids the marriage of a woman’s relatives only if he has had betrothal with that woman.

He who rapes or seduces [a relative] of his married wife, is guilty. In contrast, it is forbidden to have any type of sex, even extra-marital with the relatives of one’s wife. Since the relationship was sanctified by marriage, her relatives are prohibited.

A man may marry a woman whom his father has raped or seduced or a woman whom his son has raped or seduced. Rabbi Yehudah forbids [marriage] with a woman whom one’s father has raped or seduced. Although it is forbidden (and impossible) to marry one’s father’s wife or one’s son’s wife, the prohibition does not include a woman who had sex out of the bonds of marriage with the father or son. R. Yehudah prohibits sex with a woman who had sex with one’s father. In the talmud this is learned midrashically from Deuteronomy 23:1.

לא חולצין – for we require brotherhood from the father. But converts do not have relatives from the father.

Introduction This mishnah refers to a convert’s participation in halitzah and yibbum.

The sons of a female convert who converted with her do not perform halitzah or yibbum, even if the one was not conceived in holiness but was born in holiness, and the other was both conceived and born in holiness. When a person crosses the boundary and converts into Judaism, he legally loses his genealogical ties to his former family. Therefore, when a woman converts with her sons, her sons lose their ties to their father and are no longer legally considered to be paternal brothers. Since only paternal brothers perform yibbum or halitzah, these brothers do not. Should the wife of one of them die, the other brothers do not perform halitzah and yibbum for her. The widow is exempt as if her husband did not have any paternal brothers. This law is true even if one of the brothers was conceived before the mother converted (not in holiness, see Deuteronomy 23:1) and born after she converted (in holiness) and the other brother conceived and born after she converted. Since at the time of the conception of the first brother the mother was not Jewish, the ties to his father do not carry over. Only if both brothers were both conceived and born after the mother had converted are they considered paternal brothers (assuming they have the same father).

So also [is the law] where the sons of a female slave were freed together with her. The same exact rules apply with regard to the freeing of a female slave. When a female slave is freed she becomes “fully Jewish”, and therefore the emancipation of slaves is somewhat like conversion.

שנתערבו ולדותיהן – and each of them has a certifiable son who was not mixed up.

Introduction This mishnah and the following two mishnayoth deal with a favorite rabbinic topic, especially in seder Nashim: people getting mixed up and not knowing who they are. We will see similar discussions in tractates Gittin and Kiddushin. In the case in our mishnah, five boys from five women got mixed up, and nobody knows for sure who belongs to which mother. The problem is that should they die without children and they have brothers (or at least each woman has one other son who she knows is her son), they don’t know who is whose brother. This mishnah teaches an elegant, yet intricate way of solving the problem of who gets halitzah and yibbum from whom. In my opinion these are rabbinic “mindbenders” that some times teach principles but do not reflect reality.

ארבעה חולצות לאחת – the certifiable son of each of from the four performs Halitzah to one of them (i.e., the widows), and each of them are in doubt regarding here [due to the prohibition] of the brother’s wife, and the fifth son marries here, for whichever way you turn, if she is the wife of his brother, he performs levirate marriage with her, and if not, her levir performed Halitzah to her.

If the children of five women were mixed up and, when these mixed up children grew up, they took wives and then died, four perform halitzah for one [of the widows] and one contracts with her yibbum. [Then] he and three [brothers] perform halitzah to [another one of the widows] and one has with her yibbum. Thus every one [of the widows] has halitzah four times and yibbum once. After the five children were mixed up, they no longer know who their mother is, nor which of the women’s other sons are their brothers. When they grow up and take wives and then all die without children, it is unclear which brother of the dead, mixed up brothers should perform halitzah or yibbum for which widow. The mishnah states that first four brothers should perform halitzah for one widow, and then the fifth brother may have yibbum with her. If he was really her husband’s brother then the yibbum is done by the person who should do it. If one of the other brothers was really her husband’s brother, then she has already had halitzah and is free to marry someone else. Then the brother who has had yibbum with one widow, joins three other brothers and repeats the process with the second wife. She too has yibbum with the fifth brother. So on and so on they all repeat this process until each woman has halitzah four times and yibbum once. Note that there are other potential solutions to this problem. Four brothers could give halitzah to each woman and the fifth brother could have yibbum with each wife. Alternatively, all five brothers could have halitzah with all five wives. The mishnah probably chose this means of solving the problem so that all five wives would have one husband and no husband would perform yibbum more than once. Although bigamy was permitted in the time of the mishnah, it seems that monogamy was much more common and probably preferred.

הוא ושלשה – this one who performed levirate marriage performs Halitzah to the other and the three [women] with him, and the fifth [brother] performs levirate marriage, for whichever way you turn, and these two return and perform Halitzah with the third [woman] and the two who are with him, and the fifth [brother] performs levirate marriage and similarly for all of them.

ד' חליצות – first because none of them are permitted to perform levirate marriage until the four [brothers] perform Halitzah to her for just as he cannot infringe the prohibition against a sister-in-law’s marriage with a stranger (literally, “for he met a sister-in-law for the market), and the same law applies when the four are able to perform Halitzah for all of them, and the fifth [brother] marries all of them, but rather, this is much better for perhaps each of them happens to come upon him and he fulfills the Mizvah of levirate marriage.

מתו כשרים – the certifiable children.

Introduction This mishnah deals with the complex situation where a mother’s son gets mixed up with her daughter-in-law’s son. Afterwards each woman has another son, such that it is unclear who is whose brother and who is whose father’s brother. I will try to use names to make the situation clearer. Sarah is the mother and Rebekah is the daughter-in-law. They give birth each to one son, Joe and Stanley, but they don’t know whose child is whose. They each also give birth to another son, Sarah to Moshe and Rebekah to Eli. Joe and Stanley might be Eli’s brother or his uncle. Joe and Stanley might be Moshe’s brother or his nephew. Our mishnah deals with cases of potential yibbum involving these four men.

אחד חולץ – first [performs Halitzah] and afterwards the other [performs] levirate marriage, for whichever way you turn for if this one who performed Halitzah was the son of the daughter-in-law who performed Halitzah with his brother’s wife, for he is permitted to her through this Halitzah and it is well that the other marries her who is the son of the old lady, for the wife of his brother’s son is permitted to him. But if the one who performed Halitzah is the son of the old lady, and he performed Halitzah with the wife of his brother’s son, it is like she had Halitzah from an outsider/foreigner, so that when the son of the daughter-in-law when he performs levirate marriage, he did well in performing levirate marriage.

If the child of a woman was mixed up with the child of her daughter-in-law and the mixed-up children grew up and married women and then died, the [other] sons of the daughter-in-law perform halitzah but may not contract yibbum, for it is uncertain whether she is the wife of his brother or the wife of his father’s brother. The [other] sons of the older woman either perform halitzah or yibbum, since the only doubt is whether she is the wife of his brother or the wife of his brother’s son. If Joe and Stanley each married a woman and then died without children, their wives become liable for yibbum or halitzah with either Moshe or Eli. Eli, Rebekah’s son, must perform halitzah for each woman for each might be the widow of his brother. He cannot have yibbum with either for either might be his father’s brother’s wife and it is forbidden to have relations with one’s father’s brother’s wife. After Eli has performed halitzah with both women, Moshe, Sarah’s son, may either have halitzah or yibbum with either. He may have yibbum with either for if she is his brother’s wife, then the yibbum is valid. If she is his wife of his brother’s son, he is still permitted to marry her for it is permitted to marry the wife of one’s brother’s son. This mishnah is based on the fact that it is permitted to marry one’s nephew’s wife but not one’s uncle’s wife.

If the not-mixed-up sons died then [with respect to the widows of the sons of the older woman] the mixed-up sons perform halitzah and may not have yibbum, since it is uncertain whether she is the wife of his brother or the wife of his father’s brother; [With respect to the widows] of the sons of the daughter-in-law one performs halitzah and the other [may] have yibbum. In this case, Moshe and Eli die and each woman becomes liable for halitzah to Joe and Stanley. Both Joe and Stanley must perform halitzah for Moshe’s wife, lest she be their dead brother’s wife. They may not have yibbum with her lest she be the wife of their father’s brother. With Eli’s wife one must have halitzah, lest she be his brother’s widow but then the other may have yibbum. Yibbum in this case is permitted because even if she is not his dead brother’s wife she is his brother’s son’s wife and it is permitted, as we learned above, to have relations with one’s brother’s son’s wife. In summary, if there is the possibility that the woman is his father’s brother’s wife, he may not have yibbum with her. If there is a possibility that she is his brother’s son’s wife he may have yibbum since this is permitted.

אוכלים בתרומה – that both a Kohen and the servant of a Kohen consume heave-offering/priest’s due.

Introduction This mishnah deals with a case where a priest’s wife’s child is mixed up with her slave’s child [this would have made a good TV movie]. Each kid doesn’t know whether he is the son of a priest or the son of a slave.

וחולקים חלק אחד – It explains in the Gemara (Tractate Yevamot 99b), that this is what he said: and they divide the portion as one; if both of them to the threshing floor/granary as one, they give it to them, but if it was this one (i.e., the children of the Kohen) without that one (i.e., the children of the maidservant), they do not divide it among them for this Tanna holds that they don’t distribute heave-offering/priest’s due to a servant, other than his master is with him (which are the words of Rabbi Yehuda according to the Baraita).

If the child of a priest’s wife was mixed-up with the child of her female slave, behold both may eat terumah and [together] they receive one share at the threshing-floor. They may not defile themselves for the dead nor may they marry any women whether these are eligible [for marriage with a priest] or ineligible. Since a slave owned by a priest or a priest’s wife can eat terumah, the mixed-up children can eat terumah, for both may eat terumah. When they go to the threshing-floor, the community is responsible to give them only one portion, for only one is a priest. Neither may defile themselves, because each one might be a priest who is prohibited from defiling himself by coming into contact with a dead body. Neither of them can marry any woman because if he is a priest he cannot marry a slave-woman and if he is a slave he can’t marry any woman eligible to marry a priest. Since there is no woman who can marry either a priest or a slave, these two men are stuck.

בין כשרות בין פסולות – for each one of them is a doubtful Kohen and a doubtful slave, those who are pure [Kohanim] are forbidden to a slave and those who are invalidated are forbidden to a Kohen, and a doubtful prohibition [is judged] towards stringency.

If when they grew up, the mixed-up children freed one another they may marry women who are eligible for marriage with a priest and they may not defile themselves for the dead. If they defiled themselves, they do not receive the penalty of forty lashes. When they grow up, each may free the other, since one is the owner of the other. At this point, one is a priest and one is a freed slave, but it is unclear who is who. They may now marry any woman they want, as long as she is eligible to marry a priest, since both categories of men may marry any woman eligible to marry a priest. Neither may marry a woman not eligible to marry a priest, for instance a convert, lest he be a priest. Neither may defile himself for the dead, since one is surely a priest. However, if one does defile himself, he is not lashed as is the normal punishment, for it is not certain that he was the priest. A person can only be punished if it was certain that he committed a transgression.

סופגין את המ' – as each one says, “I am not a Kohen.”

They may not eat terumah, but if they did eat they need not pay compensation either for the principal or [the additional] fifth. They are not to receive a share at the threshing-floor, but they may sell [their own] terumah and the proceeds are theirs. They receive no share in the holy things of the temple, and no holy things are given to them but others do not take their holy things from them. They are exempt from [giving to any priest] the shoulder, the cheeks and the maw, while the firstling of either of them should remain in the pasture until it contracts a blemish. They are not allowed to eat terumah, since either one might not be a priest. However, if they do eat terumah, they do not have to repay what they ate as do regular Israelites, since each can claim that he is the priest. They do not receive terumah at the threshing-floor, since either one might not be a priest. However, when they separate terumah from their own produce, they may sell it, since other priests cannot prove that the terumah does not rightfully belong to either one of them. In other words, they cannot eat terumah but they need not give it to a priest. They do not receive parts of sacrifices, and they are not given offerings to sacrifice for each is uncertain of his priestly status. However, if they come into possession of sacrifices, other priests may not take them away from them, for each can claim that no one can prove that he is not a priest. When they do bring a sacrifice, other priests may not take the parts of the animal normally given to the priests, for each can claim that he is a priest and no one can prove him wrong. If they have a first-born animal, they do not have to give it immediately to a priest, as is usual. Rather it should graze until it becomes blemished and not valid as a sacrifice. Then they may eat it or make other uses out of it (farming or for wool, etc.).

אין משלמין – for each one says, “I am a Kohen” and they don’t remove from doubt.

The restrictions relating to priests and the restrictions relating to Israelites are both imposed upon them. This section summarizes the entire mishnah. Basically, the law treats each mixed-up child as stringently as it would a priest (he can’t defile himself for the dead) and as stringently as it would an Israelite (he can’t eat terumah). However, as with regard to economic issues, other priests cannot make claims from him, since each son can always say to the other priests, “prove that I am not a priest.” Since there is a general rule that the burden of proof is upon the claimant, he is always exempt.

ומוכרין התרומה – the heave offering of their grain, they do not give it to the Kohen when they separate it, for each one can say, “bring proof that I am not a Koen” but nevertheless, it is possible for them to consume it, but rather they sell it to a Kohen and the money is theirs.

ואין חולקים בקדשי המקדש – such as, for example, sacred hides and for each one of these, we state, “ring proof that you are a Kohen and take.”

ואין נותנין להם קדשים – to offer up.

ואין מוציאין שלהם – such as if was born to them a first-born, we don’t remove it from their hands and let it pasture/graze until it becomes unfit for sacrifice.

חומרי ישראל וחומרי כהנים – it explains in he the Gemara (Tractate Yevamot 100a) that their meal offerings are grabbed like the meal-offering of the Israelite and is offered on its own and its remnants are not consumed like the Israelite meal-offering, but rather it is burned like the meal-offering of the Kohanim which is burnt entirely.

הן חולצין ולא מיבמין – to his doubtful wife. And one of the sons of the first husband performs Halitzah, lest he was the son of their father, and he does not perform levirate marriage lest he is the son of the later husband, for he is their brother from the mother and not from the father, and his wife [is prohibited] upon them by extirpation, and similarly, the sons of the last wife, and similarly he performs Halitzah to their wives and does not perform a levirate marriage.

Introduction As we learned in chapter four, mishnah ten, a woman must wait three months between marriages in order to determine whether a subsequently born child is from the first or second husband. Our mishnah deals with a case where the woman did not wait and then bore a child seven months after being married to her second husband. In such a case it is unknown whether the child was a full-term child from the first husband or a prematurely born child from the second husband.

היו לו אחים מן הראשון ומן האחרון -- not from the same mother.

If a woman did not wait three months after [separation from] her husband, and married again and gave birth [to a son], and it is unknown whether it is a nine-months child by the first husband or a seven-months child by the second, if she had other sons by the first husband and other sons by the second, these must perform halitzah but may not contract yibbum. So too he, with their widows performs halitzah but may not contract yibbum. In this scenario, it is unclear whether this boy is a paternal brother of the children of the first father or of the second father. He is a maternal brother to all of them, but only paternal brothers are obligated by the laws of yibbum. Therefore, should he die without children, his widow must receive halitzah from one brother from the first father and from one brother from the second husband. They may not perform yibbum lest he was not their paternal brother. In this case since he is there maternal brother, marrying the widow would be forbidden. Similarly, if one of these brothers dies without children, the doubtful-son performs halitzah but not yibbum, lest he was not his brother.

הוא או חולץ או מיבם – to a wife from the first [marriage], if he is his brother, it is good, if not, she is a foreigner regarding him and as, for example if there is no brother there other than him, one doesn’t provide a sister-in-law to the marketplace and similarly regarding the wife of the last son.

If he had brothers by the first and also brothers by the second, but not by the same mother, he may either perform halitzah or contract yibbum, But as for them, one performs halitzah and the other may [then] contract yibbum. If he had brothers from the first husband and the second husband but these brothers were not from his mother, he may have halitzah or yibbum with any of their widows. With regard to the first husband’s son’s widow, if the first husband was his father, then he is performing yibbum correctly. If the second husband was his father, then the widows of the children of the first husband are like strangers (non-relatives) to him, and he may marry them. Note that this is only so if there was only one other son to the first husband. If he had other sons, his widow must receive halitzah from one of them first, lest the doubtful son was really the son of the second husband. With regard to the second husband’s son’s widow the same is also true. Either she is his brother’s widow or a stranger. In either case he may marry her. The difference between this case and that in section one is that these brothers do not share the same mother. If he (the doubtful-son) dies, then one brother from one father must perform halitzah and then the other can have yibbum. The second one may have yibbum because if he was his brother, then she is his brother’s widow, and yibbum is allowed. If he was not his brother, then she was not his brother’s widow, but she is permitted since she has already received yibbum from her brother-in-law (the son of the other husband).

והם אחד חולץ ואחד מיבם – either the son of the first [marriage] or the son of the last [marriage], he performs Halitzah to her and his colleague performs levirate marriage. If she is his sister-in-law, it is well, and if not, she is strange him, but because of having a sister-in-law in the open marketplace, one doesn’t worry for he has performed Halitzah on his sister-in-law.

היה אחד ישראל – one of the husbands was an Israelite and one of them was a Kohen.

Introduction This mishnah is a continuation of yesterday’s mishnah, which dealt with a situation in which it was unclear whether a woman’s former husband or current husband is the father of her child.

הוא אונן עליהם – perhaps this was on his father, and on the day of his death, he is forbidden to eat Holy Things.

If one of [the two husbands] was an Israelite and the other a priest: He may only marry a woman who is eligible to marry a priest. He may not defile himself for the dead, but if he did defile himself he does not suffer the penalty of forty stripes. He may not eat terumah, but if he did eat he need not pay compensation either for the principal or [for the additional] fifth. He does not receive a share at the threshing-floor, but he may sell [his own] terumah and the profits are his. He receives no share in the holy things of the temple, no holy things are given to him, but he is not deprived of his own. He is exempt from [giving to any priest] the shoulder, the cheeks and the maw, while his firstling must remain in the pasture until it contracts a blemish. The restrictions relating to priests and the restrictions relating to Israelites are imposed upon him. In this case the child is not sure if he is a priest or an Israelite. Most of the laws here are the same as those we saw in mishnah five above, so I will not explain them again. In essence all of the strictures that apply to a priest apply to him, but he does not receive all of the benefits of being a priest, for he might be an Israelite.

והם אוננים עליו – and on the day of his death, they both are forbidden [to partake of] Holy Things. And a case can be found that he sees the death of both of them that he was a valid Kohen, for he does not defile himself for them, as for example, that they were betrothed in a mistaken Kiddushin on condition, and it was not fulfilled, and left him without a Jewish bill of divorce and she got married within three [months] and in such a manner, a case can be found that he sees the death of both of them, and he is a valid Kohen, therefore, he does not defile himself to them.

If the two [husbands] were priests: He must be an onen mourner for them and they must be onenim mourners for him, but he may not defile himself for them, nor may they defile themselves for him. He may not inherit from them, but they may inherit from him. He is exempt if he strikes or curses the one or the other. He goes up [to serve] in the Temple watch of the one as well as of the other, but he does not receive a share [in the offerings]. If both served in the same watch, he receives a single portion. If both the first and second husband were priests, then this child is certainly a priest and may act as a priest and receive most priestly benefits. However there are certain complications that arise since he does not know who his father is. An “onen” is a mourner on the day that the person for whom he is mourning dies. An onen who is a priest may not serve in the Temple service. On the day that either of the husbands dies the son must act as an onen and cannot serve in the Temple. Similarly, if he dies before they do, they must act as an onen for them. Since this is a stringency it does apply. However, he may not defile himself in burying them and they may not defile themselves in burying him. This is because it is not certain which one is his father and a priest cannot defile himself for someone who is not his relative. He may not inherit from them, for each husband’s other inheritors can say that he needs to bring proof (which he cannot) that he is this husband’s son. The husbands split his inheritance, if he dies without sons. He is not liable for striking or cursing either one of them, since it is not certain which is his father. Note that were it certain which is his father, this is a capital offense. The priests were divided into 24 Temple watches, called mishmarim. Each week a different mishmar would serve. This son is responsible for serving with both father’s mishmar since this is considered a stringency. However, he does not receive the gifts that were divided amongst the priests of the mishmar, for each mishmar can say to him that he belongs to the other. However, if both fathers belonged to the same mishmar he may share in their gifts.

הוא לא יורש אותן – for the heirs supersede him these with those.

והן יורשין אותו – for who prevents them and they divide the money between the two of them.

ועולה במשמרו – to serve and the members of his priestly watch do not prevent him, but he does not take [a share] for all the members of the priestly watch supersede him concerning his colleagues.