Torah Community Connections

Week 57 - Tuesday - 26 December 2000

YEVAMOT: CHAPTER 13: MISHNAH 6

If a man divorced his wife, and took her back -- she is permitted to the yavam; but Rabbi Eliezer prohibits. So, too, if a man divorces an orphan, and took her back -- she is permitted to the yavam; but Rabbi Eliezer prohibits. A minor who was given in marriage by her father and she was divorced is as an orphan during the father's lifetime; if he took her back, all agree that she is prohibited to the yavam.

Kehati

If a man divorced his wife, and took her back -- and he died childless, she is permitted to the yavam -- even though at the time his brother had divorced her, she was prohibited to the yavam, as his brother's divorced wife, nevertheless since at the time of his death she is his brother's wife who requires yibum, she is permitted to the yavam, for we do not say: the yevamah comes before the yavam for yibum on the basis of the first marriage, and from the time that this brother divorced her she is prohibited to the yavam as his brother's divorced wife; but we say: the death of the husband makes the yevamah require yibum; but Rabbi Eliezer prohibits -- the yevamah to the yavam, by the Rabbinic enactment of the "orphan during her father's lifetime," as will be explained below.

So, too, if a man divorces an orphan -- a minor who was given in marriage by her mother or her brothers, whose marriage is valid only by Rabbinic law, and he took her back -- whether she is a minor, or she has come of age (Rashi), and he died childless, she is permitted to the yavam -- for the reason stated above, that at the time of his death she was his brother's wife, and from that time she is tied to him for yibum; but Rabbi Eliezer prohibits -- for the reason mentioned above, even though she was divorced while she was still a minor.

A minor who was given in marriage by her father and she was divorced -- from her husband when she was a minor, is an orphan during the father's lifetime -- even though her father is alive, she has the legal status of an orphan, since her father no longer has any authority over her, and if he -- the husband who had divorced her, took her back -- and he died childless, and she is still a minor, all agree that she is prohibited to the yavam -- since her divorce was fully effective by Torah law, since her father had given her in marriage, whereas her subsequent marriage was only valid by Rabbinic law, since she is a minor and she had already left her father's authority, and this marriage does not have the power to cancel the divorce. She therefore is prohibited to the yavam as his brother's divorced wife. The Gemara explains that this law is clear and evident and is taught here only in order to teach Rabbi Eliezer's reason in the cases of a man who divorced his wife and took her back, or who divorced an orphan and took her back, i.e., that she is prohibited to the yavam by the Rabbinic enactment of "an orphan during her father's lifetime," as mentioned above. A baraita quoted in the Gemara states: "The Sages agree with Rabbi Eliezer in the case of a minor who was given in marriage by her father and was divorced -- who is as an orphan in her father's lifetime -- and he took her back, that she is prohibited to the yavam, because her divorce was fully effective, and her being taken back is not. To what case does this refer? To the case in which he divorced her when she was a minor and he took her back when she was a minor; but if he divorced her when she was a minor and he took her back when she was a minor; but if he divorced her when she was a minor and he took her back when she was of age, or even if he took her back when she was a minor and she came of age when she was with him, and he died -- she either performs halitzah or is married by yibum. They said, in the name of Rabbi Eliezer, She performs halitzah and she does not undergo yibum" (Yev. 109a; see also Tosefot Yom Tov). The halakhah does not follow Rabbi Eliezer.

YEVAMOT: CHAPTER 13: MISHNAH 7

If two brothers were married to two sisters that were minors and orphans, and the husband of one of them died -- she is exempt on account of being the wife's sister. So, too, two female deaf-mutes. One an adult woman and one a minor, and the husband of the minor died -- the minor is exempt on account of being the wife's sister; if the husband of the adult died -- Rabbi Eliezer says, They teach the minor to refuse him. Rabban Gamliel says, If she refused -- she refused; and if not -- she waits until she comes of age, and then the other is exempt on account of being the wife's sister. Rabbi Yehoshua says, Woe to him because of his wife, woe to him because of his brother's wife -- he sends away his wife with a bill of divorce, and his brother's wife with halitzah.

Kehati

If two brothers were married to two sisters that were minors and orphans -- who were given in marriage by their mothers or their brothers, and the husband of one of them died -- childless, she is exempt from yibum on account of being the wife's sister -- even though her marriage is binding only by Rabbinic law, she is exempt from yibum and from halitzah, because she is the sister of the yavam's wife.

So, too, two female deaf-mutes -- who neither hear nor talk, whose marriage also is binding only by Rabbinic law, and who were married to two brothers, one of whom died childless, his wife is exempt from yibum and from halitzah, because she is the sister of the yavam's wife.

If two brothers are married to two orphan sisters, one of whom is an adult woman -- whose marriage is binding by Torah law, and one is a minor -- whose marriage is binding by Rabbinic law, and the husband of the minor died -- and she came before the husband of the adult woman for yibum, the minor is exempt -- from yibum and halitzah, on account of being the wife's sister -- she is the yavam's wife's sister; if the husband of the adult died -- and she came before the husband of the minor for yibum,

Rabbi Eliezer says, They teach the minor to refuse him -- the yavam, and her marriage will be completely voided, and afterwards he marries the adult by yibum. Rabbi Eliezer holds that the yibum tie of the adult yevamah, which is binding by Torah law, renders forbidden to him her sister who is a minor and married to him, since the latter's marriage is only binding by Rabbinic law. Thus, the only solution is to instruct the minor to refuse him, since if he were to divorce the minor, he would not be able to wed as his yevamah the adult, on account of being the sister of his divorced wife; and if he were to submit to halitzah from the adult, he could not keep the minor, because she would be the sister of his halutzah.

Rabban Gamliel says, If she refused -- she refused -- and he marries the adult by yibum; and if not -- if she does not want to refuse, she waits -- the minor remains with him, until she comes of age -- and he has intercourse with her, and her marriage will then be binding by Torah law, and then the other -- the adult yevamah, is exempt on account of being the wife's sister -- Rabban Gamliel disagrees with Rabbi Eliezer, and holds that the yibum tie of the yevamah does not have the force to render the sister who is a minor and his wife, prohibited to him; therefore, if she does not refuse, he may keep her with him until she comes of age.

Rabbi Yehoshua says, Woe to him because of his wife, woe to him because of his brother's wife -- he loses both, he sends away his wife with a bill of divorce -- for Rabbi Yehoshua also holds, as does Rabbi Eliezer, that his wife who is a minor is prohibited to him, because of the yibum tie of his adult yevamah. According to Rabbi Yehoshua, however, they do not teach her to refuse, because the Sages said, One should always distance oneself from Refusal, lest she regret this when she comes of age (Gemara). He therefore sends away his wife with a bill of divorce, and his brother's wife -- his yevamah, he sends away with halitzah -- but he does not marry her by yibum since she is the sister of his divorced wife. Rabbi Eliezer holds that, although the Sages said, One should always distance oneself from Refusal, where a mitzvah is involved, such as the mitzvah of yibum in this case, they teach her to refuse. The halakhah follows Rabbi Eliezer.

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