Comentário sobre Yevamot 6:8

הבא על יבמתו. שוגג – as he was thinking that she was another woman.

Introduction This mishnah teaches that any intercourse counts as an act yibbum.

מזיד – for the sake of unchastity and not for the Mitzvah of levirate marriage.

One who has intercourse with his yevamah, whether in error or with presumption, whether under compulsion or of his own free will, even if he acted in error and she in presumption, or he in presumption and she in error, or he under compulsion and she not under compulsion, or she under compulsion and he not under compulsion, whether he only began to have intercourse or he completed having intercourse, he has acquired her as a wife. The laws do not make a distinction between different types of intercourse. Whether in error or with presumption: In error means that he did not know that she was his yevamah. With presumption means that he did not intend to fulfill the mitzvah of yibbum, but rather just to have intercourse with her for the sake of pleasure. Whether under compulsion or of his own free will: Under compulsion means that someone forced him to have relations with the yevamah. Of his own free will means that he intended to fulfill the mitzvah. Even if he acted in error and she in presumption: He did not know that she was the yevamah, but she knew that he was the yavam but she did not intend to fulfill the mitzvah. Or he in presumption and she in error: He did not intend to fulfill the mitzah and she did not know who he was. Or he under compulsion and she not under compulsion: He was forced and she intended to fulfill the mitzvah. Or she under compulsion and he not under compulsion: She was forced but he was not. The same is true if both were forced, or both were presumptuous. The intercourse always counts. Whether he only began to have intercourse or he completed having intercourse: It does not matter if they complete having intercourse (assumedly referring to ejaculation). The laws do not make a distinction between different types of intercourse. According to the talmud, this means that even “non-natural” intercourse (anal sex) counts as intercourse for the sake of yibbum. In all of these cases, the mere act of intercourse means that he has acquired her as a wife.

אפילו הוא שוגג והיא מזידה – needless to say where she intended [to fulfill] the Mitzvah but rather even where both of them don’t have the intention [of fulfilling] the Mitzvah such as the case where he intends for another woman, and she had the intention for the sake of unchastity, he has acquired her [as his wife], as it states in Scripture (Deuteronomy 25:5): “ Her husband’s brother shall unite with her: [he shall take her as his wife and perform the levir’s duty],” anyway.

המערה – that he did not complete his coition, but rather, he inserted the corona of his membrum virile alone, and the meeting of the corona without insertion is called “kissing.”

קנה – and he took possession of the inheritance and she is removed with a Jewish bill of divorce if he comes to remove her.

לא חלק בין ביאה לביאה – whether a coition in its proper manner or a coition not in its proper manner, as it is written (Leviticus 20:13): “[If a man lies with a male] as one lies with a woman,” the Biblical verse tells us that there are two ways of sexual gratification.

וכן הבא על אחת מכל העריות – in one of all of these forms of coition.

Introduction While the previous mishnah served as a quasi-summary to the preceding chapters which all dealt with yibbum, our mishnah serves as a bridge to a new topic: forbidden relationships, specifically women who are forbidden to priests. We will deal with these laws for the next four chapters of Mishnah.

או על הפסולות כגון אלמנה לכהן גדול וכו' – she is invalidated to the priesthood because she is unfit to marry a Kohen (as a harlot), even though that the wife of an Israelite who was raped is permitted to her husband, but she is invalid to the priesthood, and a divorcee as well, if she is the daughter of a Kohen, she invalidates herself by this coition from Terumah of wife’s house.

Similarly, one who has intercourse with any of the forbidden relatives listed in the Torah, or with any of those who are disqualified to marry him as, for instance, a widow to a high priest, a divorced woman or a halutzah to a common priest, a mamzeret or a netinah to an Israelite or the daughter of an Israelite to a mamzer or a nathin, he has disqualifed [her from marrying a priest], and the laws do not make a distinction between different types of intercourse. This mishnah states the same rule that was stated in the previous mishnah: with regard to forbidden sexual relations, any sexual intercourse counts (i.e. unintentional, under compulsion, etc.). Furthermore, the point of our mishnah is that once a woman has had forbidden sexual intercourse, she can no longer marry a priest. This is true whether the intercourse was forbidden because it was with a priest and she was forbidden to a priest, or if the intercourse was forbidden to Israelites as well (such as a mamzer and an Israelite). In all cases the woman is forbidden to subsequently marry a priest. [Note that a mamzeret and a netinah could not in any case marry a priest. This clause was taught here only to teach that it is forbidden to have any type of intercourse with a mamzeret or a netinah].

ממזרת ונתינה לישראל – it dos not refer to her being invalidated to the priesthood, for she is invalidated and enduring, but rather to the matter of the first stage of sexual connection, the Mishnah took it as punishing her as the first stage of sexual connection which is like the completion of coition.

מן האירוסין לא יאכלו בתרומה – because she was betrothed in a sinful betrothal, she is disqualified from the Terumah/priest’s due of her father’s house if she is the daughter of a Kohen.

Introduction Our mishnah teaches when the daughter of a priest who is married to someone forbidden to her, loses the right to eat terumah, which is reserved only for priests and their families.

רבי אליעזר ור"ש מכשירין – until she has sexual intercourse and becomes the female issue of a priest’s illegitimate connection (or a priest’s wife illegitimately married to him), as it states (Leviticus 21:15): “that he may not profane [his offspring among his kin, for I the LORD have sanctified him],” two profanations: one- hers, and the other to her seed. But the Halakha is not according to him, but rather, even from betrothal, they should not consume Terumah.

A widow to a high priest, a divorced woman or a halutzah to an ordinary priest they do not eat terumah from the point of betrothal. Rabbi Elazar and Rabbi Shimon declare them eligible. There are three laws which must be explained before we can understand this mishnah. First of all it is forbidden for a widow to marry a high priest and for a divorcee or a halutzah to marry an ordinary priest. If they do, the women lose the right to eat terumah, both as wives of the priest and as daughters of priestly fathers. Second of all, an unmarried daughter of a priest continues to eat terumah until she is married. Once she is married, should she be widowed or divorced without children she returns to eating terumah. If she was married to a non-kohen and she had children, when divorced or widowed she does not eat terumah. Third of all, a woman who has relations with someone who is forbidden to her can no longer eat terumah. According to the first opinion in the mishnah, as soon as the woman is betrothed to someone to whom she is forbidden, she loses her right to eat terumah. Although she is only betrothed, and has not had sexual intercourse, she already loses the right to eat terumah. According to Rabbis Elazar and Shimon, she only loses that right when she actually marries the kohen, to whom she is forbidden. At the point of marriage the women become what is known as halalot, or profaned women, who may not eat terumah.

נתארמלו או נתגרשו – [became widowed or divorced] from these Kohanim from the marital state, they are disqualified, for they are considered an illegitimate connection to a Kohen with their sexual actions.

If they became widows or were divorced after full marriage they are ineligible; If after betrothal they are eligible. If they were married and then divorced or widowed, all the sages agree that they do not return to their father’s domain to eat terumah. Since they were married to someone to whom they are forbidden, they lose this right forever. However, if they were divorced or widowed from betrothal, then they may return and eat terumah. In this case even the sages who held the first opinion of section one hold that they may eat terumah. They were forbidden to eat terumah when they were betrothed women, waiting to be married to men forbidden to them. Now that they will surely not marry these men, they may return to their father’s home to eat terumah.

מן הארוסין כשרות – and even the first Tanna/teacher [of our Mishnah] did not invalidate from the betrothal, other than while they are alive for she has to be on her guard to an invalid coition, but not if they (i.e., the men) died.

לא ישא את הבוגרת – as it is written (Leviticus 21:13): “He (i.e., the High Priest) may only marry a woman who is a virgin,” excluding a woman of age, whose virginity was destroyed.

Introduction This mishnah deals with the prohibition of a widow to a high priest. This prohibition is mentioned in Leviticus 21:14.

רבי אליעזר ורבי שמעון מכשירין – and the Halakha is not according to their opinions.

A high priest shall not marry a widow whether she became a widow after a betrothal or after a marriage. A high priest cannot marry any widow, even one who was only betrothed and not married before she became a widow.

He shall not marry one who has reached puberty. Rabbi Elazar and Rabbi Shimon permit him to marry one who has reached puberty, but he may not marry one who lost her virginity through a stick. Leviticus 21:13 states that the high priest must marry a betulah, commonly translated as a virgin. The word “betulah” can also mean, young, unmarried girl. It was probably assumed that most prepubescent, unmarried girls were also physiological virgins. Incidentally, in Greek literature, virgin was also not used the same way that modern English uses the word virgin. It could also denote a young, unmarried girl. In any case, since the Torah states that he must marry a “betulah” the sages rule that he may not marry a girl who has reached puberty, which is actually six months after the first physical signs of maturation. The common age for this is 12 ½. Before this, by legal definition a girl could not reach puberty. Meaning, even if she did it was not considered to be statuary puberty. According to Rabbi Elazar and Rabbi Shimon, the high priest may marry a post-pubescent girl. According to their definition, a betulah is defined as one who still is physiologically a virgin. Since this girl is, the high priest may marry her. However, he may not marry one who has lost her physical signs of virginity in any way, even not through sexual intercourse. In the Mishnah a girl who lost her hymen in a way other than through sexual intercourse is called a “mukat etz”, literally, hit with a stick.

[A priest who] betrothed a widow, and was subsequently appointed high priest, may bring her into marriage. It once happened with Joshua ben Gamla that he betrothed Marta the daughter of Boethus, and the king appointed him high priest, and he brought her into marriage. If a priest betrothed a widow, who is permitted to an ordinary priest, and then subsequently was appointed high priest, he may complete the marriage, even though as high priest he cannot marry a widow. In essence the marital bonds are secured before he became high priest and by merely completing them and bringing her into marriage, he is not transgressing the Torah’s prohibition of a widow to a high priest. The mishnah relates the story on Joshua ben Gamala who married Marta, the widowed daughter of a very wealthy man, and then became a high priest. Although she was a widow, he was still allowed to bring her into marriage. Note that the function of the story in this mishnah is probably to demonstrate that not only do the sages rule that this is allowed, but the priests actually did so. This point is crucial since often we see priests being even more strict than the law requires, at least on issues of marriage and status.

If a shomeret yavam became liable to have yibbum with an ordinary priest and then he was appointed high priest, even though he already did ma’amar, he may not bring her into marriage. A high priest whose brother died must perform halitzah but may not contract yibbum. The laws of yibbum are problematic for a high priest, because he cannot marry a widow. In general we can see that the positive commandment to perform yibbum does not “trump” the prohibition of marrying a widow. This section teaches that if a shomeret yavam became liable for yibbum with an ordinary priest, and then he became high priest, even if he did ma’amar, he cannot marry her. Although in the above section we saw that if an ordinary priest had betrothed a woman and then been appointed high priest he could marry her, since ma’amar is only of rabbinic status (and not biblical as is regular betrothal), it does not create enough of a tie to allow him to marry her. If he were to have yibbum, it would count as marrying a widow while a high priest, which is forbidden. The mishnah ends by quoting mishnah Sanhedrin 2:1, which states that if a high priest’s brother dies without children, the high priest must perform halitzah and cannot have yibbum.

כהן הדיוט לא ישא אילונית וכו' – and the same law applies for a Israelite male, and it (i.e., the Mishnah) did not take [the example of] a Kohen other than because of the dispute of Rabbi Yehuda who stated, that a Kohen, even if he has a wife and children, should not marry a barren woman, which is not the case regarding an Israelite male, but the Halakha is not according to Rabbi Yehuda.

Introduction Leviticus 21:7 states that an ordinary priest may not marry a “zonah”, usually translated as a “harlot”. In rabbinic literature the word “zonah” is used to refer to any woman who is categorically forbidden to a priest, even if she was not literally a harlot. Our mishnah discusses the definition of a zonah.

ושנבעלה בעילת זנות – such as for example those liable for violation of negative commandments or those liable for violation of positive commandments, and all the more so, those liable for extirpation or death by the Jewish court , but a person who comes upon a unmarried woman has not made her a harlot.

An ordinary priest shall not marry a woman incapable of procreation, unless he already has a wife or children. Rabbi Judah said: even though he has a wife and children he shall not marry a woman incapable of procreation, since she is a zonah, as mentioned in the Torah. But the Sages said: the term zonah implies only a female convert, freed slavewoman and one who has been subjected to illicit intercourse. A woman incapable of procreation is called an “aylonit”. The definition of “aylonit” is a woman who has never developed signs of sexual maturity. In other words, an aylonit is not a woman who looks like a sexually mature woman but has not succeeded in becoming pregnant. Rather an aylonit is a woman, who is clearly a woman and not a man, but who never hit puberty. An ordinary priest cannot marry her, and according to the Talmud, even a regular Israelite cannot marry her, unless he has already fulfilled the commandment of procreation. The reason that the mishnah teaches that an ordinary priest cannot marry her and does not say that no one can marry her, is that Rabbi Judah holds that an ordinary priest cannot marry her even if he has a wife and children. According to the first opinion in the mishnah the problem with the aylonit is that she cannot procreate. Therefore, a person can only marry her if he has already fulfilled the mitzvah of procreation or has another wife, with whom he may potentially fulfill the mitzvah. According to Rabbi Judah, the aylonit is categorized as a “zonah”, who is always forbidden to a priest, even if he already has children or another wife. She is a “zonah”, for the priest married her knowing that she could not procreate. The Sages disagree and claim that an aylonit is not a zonah. The Sages define a zonah as a female convert, a freed slavewoman or a woman who has had illicit intercourse. The first two are forbidden under the assumption that they had relations with Gentiles or slaves before conversion or manumission. Although that intercourse was permitted at the time, it still renders them off-limits to the priest. The woman who has had illicit intercourse is any woman who has had intercourse with someone with whom she is forbidden to marry.

ב"ש אומרים שני זכרים – that we derive it from Moses who separated from [his] wife afer two males were born to him.

Introduction Since the previous mishnah mentioned the aylonit, who cannot have children, our mishnah discusses the obligation of procreation.

וב"ה אומרים זכר ונקיבה – as it states (Genesis 5:2): “male and female He created them.” But from Moses, it is not a proof because he acted following the Divine order.

A man shall not abstain from procreation unless he already has children. Beth Shammai says: two males, And Beth Hillel says: male and a female, for it says, “Male and female created he them” (Genesis 5:2). The point that this line in the mishnah is trying to make can be read in two subtly different ways. It may be that the point of the line is to teach that there is an obligation to procreate. In other words, without this directive people may have thought (and in ancient Judaism some sects did think) that God preferred people to be celibate and to forego children. Judaism teaches the opposite. Sexual relations are generally viewed in a positive light and having children is positive commandment. The other way to read the line, is that it is taken for granted that a person is obligated to procreate. The innovation of our mishnah is that a man does not need to keep on having children as long as possible. Once he has had two children, he may desist from procreation. Understanding the line this way, we would have a different view of the mishnah. Although it is still considered a commandment to procreate, a person might fulfill that mitzah with only two children and then devote his life to other things, such as the study of Torah. We should note that in any case, the Talmud teaches that even if a man has children he should remain married for marriage is a preferred state. Beth Shammai holds that a person needs two male children to have fulfilled the requirement. In the Talmud this is learned from a precedent set by Moses, who had two children and then separated from his wife (according to a midrash). From the story of the creation, where man and woman were created together, Beth Hillel learns that a person needs both a male and a female child to have fulfilled the mitzvah.

ושהה עמה עשר שנים וכו' – as we find with Abraham after he tarried with his wife for ten years without her giving birth, he married Hagar and for the days that he lived with her outside the Land [of Israel], the did not count in the number, for perhaps dwelling outside of the land caused it, and all the days that the husband or the wife are sick or are imprisoned and in a similar manner we speak that they prevent sexual intimacy, they do not count to the number of ten years.

If a man married a woman and lived with her for ten years and she bore no child, he may not abstain [any longer from the duty of propagation]. If he divorced her she is permitted to marry another, and the second husband may also live with her for ten years. If she miscarried [the period of ten years] is counted from the time of her miscarriage. This section presents a halakhic ramification to the fact that Jews are commanded to procreate. If a man is married to a woman and for ten years they do not succeed in having children, he must either marry another wife or divorce the first wife and marry another wife. When bigamy was prohibited, only the second option remained. Note that the mishnah is rather lenient. Ten years is a long time to attempt to have children. The mishnah gives the couple the benefit of the doubt. Furthermore, the woman who could not succeed in having children with one man, is allowed to remarry. We might have thought that there would be an assumption of infertility. The mishnah fully realizes that the infertility might have been a problem with the man. Finally, if she has a miscarriage, the ten years begin to be counted again. Although the child was not even born, we have seen that the woman can get pregnant and that perhaps she will someday be able to have a viable child. I should also note, that although this halakhah is still on the books, it is not observed. Even ultraorthodox couples do not divorce if they don’t succeed in having children. The halakhah is simply ignored.

גרשה מותרת לינשא לאחר – for perhaps it was not her, but rather him [who was infertile], and when he divorces her, he gives her the Ketubah settlement if she claims that it is from him [who was infertile] who does not have a spermatic emission which does not shoot forth like an arrow (i.e., does not fructify), and they place an oath upon her if she knows that he does have a spermatic emission which does shoot forth like an arrow , and she makes against him false claim which is a lie.

A man is commanded concerning the duty of propagation but not a woman. Rabbi Yohanan ben Beroka says: Concerning both of them it is said, “And God blessed them; and said to them… “Be fruitful and multiply” (Genesis 1:28). According to the first opinion, only men are obligated to procreate. Rabbi Yohanan ben Baroka says that both men and women are obligated equally. We should note that although the first opinion sounds very chauvinistic, and it somewhat is, not being obligated to have children does free a woman to be more in control over her own reproductive process. Certainly the laws of birth control are more lenient if she is not obligated to have children. There is some excellent secondary literature on this issue. Judith Hauptman has a chapter on the topic in her book, “Rereading the Rabbis”. David Feldman’s book, “Birth Control in Jewish Law” also discusses the topic.

האיש מצווה על פריה ורביה ולא האשה – as it is written (Genesis 1:28): “Be fertile and increase, [fill the earth] and master it,” and [the word] "כבשה" is written without a “VAV.” It is the way for a man to conquer the woman; he is commanded on “being fertile and increase.”

רבי יוחנן בן ברוקה אומר וכו' – But the Halakha is not according to him.