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Week 56 - Shabbat - 23 December 2000

YEVAMOT: CHAPTER 12: MISHNAH 6

This is the rite of halitzah: he and his yevamah come to the Court, and they give him advice suitable for him, as it is written, "Then the elders of his city shall call him, and speak to him" (Deut. 25:8). And she says, "My husband's brother refuses to raise up to his brother a name in Israel; he will not perform the duty of a husband's brother to me" (ibid., v. 7). And he says, "I do not want to take her" (ibid., v. 8). And they spoke in the Holy Language. "Then shall his brother's wife go up to him in the presence of the elders, and loose his shoe from off his foot, and spit before him" (ibid., v. 9) -- spittle that is visible to the judges. "And she shall answer and say, 'So shall it be done to the man that does not build up his brother's house'" (ibid.). Thus far they would rehearse. And when Rabbi Hyrkanus rehearsed it under the terebinth in Kfar Etam, and completed the entire section, they adopted the completing of the entire section. "And his name shall be called in Israel, 'The house of him that had his shoe loosed'" (ibid., v. 10) -- it is a mitzvah for the judges but it is not a mitzvah for the pupils. Rabbi Yehudah says, It is a mitzvah for all who are standing there to say, "The man that had his shoe loosed. The man that had his shoe loosened. The man that had his shoe loosened."

Kehati

This is the rite of halitzah: He -- the yavam, ad his yevamah come to the Court, and they give him advice suitable for him -- good advice, e.g., if he is young and she is old, or if he is old and she is young, they advise him to submit to halitzah and not to marry by yibum, as it is written, "Then the elders of his city shall call him, and speak to him" -- words which are suitable for him.

And she says, "My husband's brother refuses to raise up to his brother a name in Israel; he will not perform the duty of a husband's brother to me." And he says, "I do not want to take her." And they spoke in the Holy Language -- both the yavam and the yevamah are required to recite these verses in Hebrew (see Sot. 7:4).

"Then shall his brother's wife go up to him in the presence of the elders, and loose his shoe from off his foot, and spit before him" -- spittle that is visible to the judges -- the judges must see the spittle, when the yevamah brings it forth form her mouth, i.e., the words "in the presence of the elders' refer also to "and spit before him."

"And she shall answer and say, 'So shall it be done to the man that does not build up his brother's house.'" Thus far they -- the judges, would rehearse -- would have the yevamah recite after the halitzah.

And when Rabbi Hyrkanus rehearsed it under the terebinth in Kfar Etam, and completed the entire section -- he had the yevamah recite the verse beginning "And his name shall be called," as well, they adopted the practice of the completing of the entire section -- that the yevamah recites the verse beginning "And his name shall be called," as well.

"And his name shall be called in Israel, 'The house of him that had his shoe loosed'" -- it is a mitzvah for the judges -- to answer after her, "The man that had his shoe loosened," but it is not a mitzvah for the pupils -- who are sitting in the Court at the time of the halitzah.

Rabbi Yehudah says, It is a mitzvah for all who are standing there to say, "The man that had his shoe loosed. The man that had his shoe loosed. The man that had his shoe loosed." -- three times. The halakhah follows Rabbi Yehudah (Rambam, Hil. yibum 4:8).

YEVAMOT: CHAPTER 13: MISHNAH 1

Bet Shammai say, Only betrothed may refuse; but Bet Hillel say, Betrothed and married. Bet Shammai say, The husband, and not the yavam, but Bet Hillel say, The husband, and the yavam. Bet Shammai say, In his presence; but Bet Hillel say, In his presence and not in his presence. Bet Shammai say, Before a Court. But Bet Hillel say, Before a Court and not before a court. Bet Hillel said to Bet Shammai: She refuses while she is a minor, even four or five times. Bet Shammai said to them, The daughters of Israel are not ownerless property! Rather, she refuses and waits until she comes of age, and she refuses and shall be married.

Kehati

This chapter discusses the marriage of a girl who is a minor and her right of Refusal. In order to understand properly these subjects, we must first explain the concept of Refusal, which we have already mentioned previously. The father may betroth his daughter while she is a minor to a man, and she becomes his wife in all respects, by Torah law, and the union may be dissolved (as long as he is alive) only with a bill of divorce. By Torah law, a girl who is a minor whose father has died, on the other hand, may not be betrothed. The Sages, however, enacted that her mother or her brother may give her in marriage to a man, and she is his wife, by Rabbinic law. However, until she becomes of age, i.e., until she reaches the age of twelve years and one day and produces two hairs, she may refuse her husband, and say that she does not want him, and she separates from him without a bill of divorce. It is taught (M. K. 3:3) that the Court before which she refuses gives her a document of refusal as proof (see Yev. 108a). A girl whose father gave her in marriage to a man while she was a minor, and who was widowed or divorced from him while she is a minor, is "an orphan during her father's lifetime," since she has already left her father's authority, and he no longer has authority to give her in marriage a second time. If she went and married a man while a minor, she may refuse him as long as she is a minor (see our explanation on 1:1, above). This mishnah quotes five disagreements between Bet Shammai and Bet Hillel regarding Refusal.

Bet Shammai say, Only betrothed may refuse -- if an orphan was given in marriage by her mother or by her brother while a minor, she may, by Rabbinic enactment, refuse her husband, as long as she is a minor, and she leaves him without a bill of divorce, as explained in the introduction to this mishnah. According to Bet Shammai, she may refuse only if she had only been betrothed. This is the meaning of the mishnah: "Only betrothed refuse," but after she has been married, she may not refuse her husband and leave him without a bill of divorce. The Gemara explains Bet Shammai's reason: A person does not want the bother and the wasted expense of making a wedding banquet, and if she can simply refuse him after the marriage, he will refrain from wedding her.

But Bet Hillel say, Betrothed and married -- whether the girls are betrothed or married, they may refuse, i.e., even after she was wed, she may refuse her husband, as long as she is a minor, and she leaves him without a bill of divorce. Bet Hillel do not fear that people will refrain from marrying her since, in any event, they prefer to be known as married men.

Bet Shammai say, The minor orphan may refuse only the husband -- i.e., her betrothed, and not the yavam -- if her husband died and she had not refused him, and she came before his brother for yibum, she cannot release herself from the yavam by refusal, rather she must wait until she comes of age and then she performs halitzah;

But Bet Hillel say, She may refuse, both the husband, and -- or -- the yavam -- even if her husband died and she became eligible for yibum, she may refuse the yavam, as long as she is a minor, she is exempted from the yibum tie without halitzah, and she is permitted to wed another. However, she is prohibited from marrying the yavam himself afterwards, since at the time she became eligible for yibum she was considered to be his brother's wife. And if there are two brothers, and she refused one, she may be married to the other one (Tosefot Rabbi Akiva Eiger).

Bet Shammai say, She may refuse only in his -- the husband's, presence -- for she may be embarrassed in his presence and not refuse him;

But Bet Hillel say, In his presence and not in his presence -- her Refusal is valid even if she is not in her husband's presence when she refuses.

Bet Shammai say, She may refuse only before a Court -- of experts.

But Bet Hillel say, Before a Court and not before a Court -- i.e., even before a Court not of experts, but of three lay judges. The halakhah is that she may refuse, even before only two witnesses (Gemara).

Bet Hillel said to Bet Shammai: She refuses while she still is a minor, even four or five times -- if she was wed after the refusal to a second one, she may refuse him as well, and even several husbands, one after the other.

Bet Shammai said to them, The daughters of Israel are not ownerless property -- that they may be given to several husbands, one after the other, and go out without a bill of divorce; and even from the betrothal she may not refuse and be betrothed to another, and refuse him as well; Rather she refuses -- once and waits -- to be betrothed, until she comes of age -- and she may no longer exercise the right of Refusal, and -- or -- she shall refuse and she shall be married -- immediately, for after marriage she may no longer refuse, since -- according to the opinion of Bet Shammai -- the wedded woman may not refuse.

Tosefot Yom Tov writes that since Bet Shammai give a reason for their opinion ("The daughters of Israel are not ownerless property"), the mishnah introduces the last dispute with the clause, "Bet Hillel said to Bet Shammai...." According to Hameiri, however, this dispute is linked to the preceding disagreement, whether or not she must refuse before a Court, for Bet Hillel say, How can we require only a Court of experts, since the minor may refuse several times, and the words of the Sages will thus be the object of mockery and jest. Bet Shammai replied that they permit her Refusal only once.

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