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Week 53 - Monday - 27 November 2000

YEVAMOT: CHAPTER 4:MISHNAH 13

Who is a mamzer? Any near relative who is included in "he shall not enter". So Rabbi Akiva. shimon HaTimni says, Any for which they are liable to karet at the hands of Heaven; and the halakhah follows his opinion. Rabbi Yehoshua says, Any for which one is liable to a Court-imposed death penalty. Rabbi Shimon ben Azzai said, I found a genealogical scroll in Jerusalem, in which it was written: "So-and-so is a mamzer by a married woman," thus confirming the opinion of Rabbi Yehoshua. If his wife died, he is permitted her sister; if he divorced her and she died, he is permitted her sister; if she married another and she died, he is permitted her sister. If his yevamah died, he is permitted her sister; if he submitted to halitzah from her and she died, he is permitted her sister.

Kehati

In the wake of the preceding mishnah, this mishnah deals with the general definition of "mamzer."

Who is a mamzer -- of whom it is written, "A mamzer shall not enter the assembly of the Lord" (Deut. 23:3)?

Any near relative who is included in "he shall not enter" -- if he cohabits with a relative thereby transgressing a Torah prohibition punishable by lashes, the fruit of such a union is a mamzer, So Rabbi Akiva -- Rambam writes that the complete version of Rabbi Akiva's opinion is as follows: "Any near relative and whoever is included in 'he shall not enter'" -- i.e., not only a relative, but the child by any woman who is prohibited to him by any Torah prohibition, is a mamzer (see Tosefot Yom Tov and Tosefot Rabbi Akiva Eiger) The Gemara explains the reason for Rabbi Akiva's opinion: It is written, "A man shall not take his father's wife, and shall not uncover the corner of his father's garment" (Deut. 23:) -- he shall not uncover the garment (a euphemism for sexual relationship) of the garment that his father saw. Rabbi Akiva holds, as does Rabbi Yehudah, that the Torah here refers to the woman violated by one's father, who is forbidden by a prohibition punishable by lashes. This is closesly followed by the passage, "A mamzer shall nto enter the assembly of the Lord" (Deut. 23:3). Hence, a mamzer is also the fruit of a union forbidden by a Torah prohibition punishable by lashes.

Shimon HaTimni says -- the offspring of a union with any -- near relatives for which they are liable to karet at the hands of Heaven -- such a child is a mamzer, but not the offspring of a union forbidden by a Torah prohibition punishable by lashes. The Gemara explains that Shimon HaTimni is of the same opinion as the Sages, that the passage "shall no uncover his father's garment" refers to his father's shomeret yavam, i.e., the widow of his father's childless brother, who is included among those with whom intercourse is punishable by karet. This is followed by: "A mamzer shall not enter the assembly of the Lord," to teach that only offspring of a union punishable by karet is a mamzer; and the halakhah follows this -- Shimon HaTimni's, opinion -- that the offspring of a union prohibited by the Torah on pain of lashes is not a mamzer, but where cohabitation is punishable by karet, the offspring is a mamzer. Regarding the menstruant, however, all agree that even though the man who has sexual intercourse with her is liable to karet, nonetheless, the child is not a mamzer. The Gemara explains the reason for this: It is because marriage contracted while she is menstruant is vaild, as it is written, "and her menstruation be [u-tehi] upon him" (Lev. 15:24) -- even at the time of her menstruation the marriage is effective for her (the word u-tehi implies the continued existence of the marriage).

Rabbi Yehoshua says, Any for which one is liable to the Court-imposed death penalty -- a mamzer is the child by a woman prohibited by near relationship, intercourse with whom is punishable by a Court-imposed death penalty, e.g., his father's wife, his mother, his daughter, or a married woman, but the child of a union punishable by karet is not a mamzer, for the Torah writes, "A man shall not take his father's wife" (Deut. 23:1), which teaches that only in cases like this is the child a mamzer.

Rabbi Shimon ben Azzai said, I found a genealogical scroll, -- in which the lineage of families was recorded, in Jerusalem, in which it was written: "So-and-so is a mamzer by a married woman": Rabbi Shimon ben Azzai told of the genealogical scroll thus confirming the opnion of Rabbi Yehoshua -- that only a child born of a union punishable by a Court-imposed death penalty e.g., a man who has intercourse with another man's wife is liable to death by strangulation is a mamzer. Tosafot explain that the expression "a married woman" was used in order to teach that though the adulterer is liable only to strangulation, which is the least severe of the four Court-imposed death penalties (stoning, burning, beheading, and strangulation) a child born of such a union is a mamzer, and this certainly is the case regarding unions punishable by stoning (e.g., his mother, his father's wife, or his daughter-in-law) or by burning (e.g., with his dauther or his mother-in-law).

If his wife died, he is permitted to marry her sister -- for the wife's sister is prohibited only during his wife's lifetime, as it is written, "And you shall not take a woman to her sister, to be a rival to her, to uncover her nakedness, beside the other in her lifetime" (Lev. 18:18); and similarly, if he divorced her and she -- his divorced wife -- died, then he is permitted to marry her sister; if she -- his divorced wife, married another and she died, he is permitted her sister -- i.e., even if his divorced wife married another, he is permitted to marry her sister only if his divorced wife has died (Tosafot).

If his yevamah died, he is permitted her sister; if he submitted to halitzah from her and she died, he is permitted her sister -- but before she has died, he is forbidden to marry her sister. The Gemara states, "Here Rabbi taught an unnecessary mishnah," since the Torah states explicitly, "beside the other in her lifetime" -- his wife's sister is prohibited to him only during his wife's lifetime (Rashi), and this certainly applies to the sister of his yevamah. According to another interpretation, the Gemara refers to the last section of the mishnah, which teaches the law regarding the yevamah, for since this law was taught regarding his wife, it certainly applies to his yevamah. The first section of the mishnah, however, teaches the main principle of the law, even though it is stated explicitly in the Torah, as well as teh implied teaching that even if he divorced his wife, he is permitted to marry her sister only if his divorced wife has died (Tosafot); and this is how we have explained "If she married another," above.

YEVAMOT: CHAPTER 5: MISHNAH 1

Rabban Gamliel says, There is no bill of divorce after a bill of divorce, and no ma'amar after ma'amar, and no intercourse after intercourse, and no halitzah after halitzah. But the Sages say, There is a bill of divorce after a bill of divorce, and there is ma'amar after ma'amar, but there is nothing after intercourse or after halitzah.

Kehati

In order to understand this chapter, it is first necessary to explain a number of principles, some of which have already been mentioned in the preceding chapters: (1) By Torah law, the yevamah is married by yibum to the yavam, to be the wife in every respect, only by bi'ah, an act of sexual intercourse, as it is written, "her husband's brother shall go in [yavo] to her, and take her to him as a wife, and perform the duty of a husband's brother to her" (Deut. 25:5). The Sages, however, enacted that the yavam may not have intercourse with his yevamah until he marries her with money or a document, in the manner in which this is done for all other women. Such marriage with money or document is called "ma'amar." Ma'amar effects only a partial contract of marriage, involving its restrictions for the yevamah, as taught in the preceding chapters.

(2) The yevamah is released form her zikah (tie to the yavam), and permitted to marry any man, only by halitzah. If her yavam gave her a bill of divorce, the Sages enacted that the bill is restrictively effective as far as halitzah is concerned, disqualifying her from yibum (for "since he did not build up, he may no longer build up"), prohibiting her rivals to him and to the other brothers, prohibiting her relatives to him, and disqualifying her from marrying a priest, as is the law regarding a divorced woman, but she nevertheless is not permitted to marry another until he submits to halitzah from her.

(3) If a yavam married his yevamah by ma'amar, but he does not want to consummate the marriage, he must give her a bill of divorce and also to submit to halitzah from her: the bill of divorce -- in order to release her from the ma'amar marriage, and halitzah -- in order to release her from the yibum tie, and to release her so that she may be married to another.

Rabban Gamliel says, There is no bill of divorce after a bill of divorce -- if two wives (e.g., Leah and Hannah) of a dead, childless man came before his brother for yibum, and he gave a bill of divorce to Leah, and afterwards he gave a bill of divorce to Hannah, the latter's bill of divorce is not valid, and he is not forbidden to marry her relatives, for when he gave a bill of divorce to Leah, he was released from teh tie to both of them (as stated in the introduction to the mishnah), for the bill of divorce is effective for the yevamah, by Rabbinic law, as a kind of halitzah, to remove her from yibum and to prohibit her rivals to him and to the other brothers (since a bill of divorce effects divorce for a married woman). When, therefore, the yavam gave a bill of divorce to any woman in the marketplace. And similarly, if two yevamim give each a bill of divorce to one yevamah, the bill of the second one is void, and he is permitted to marry her relatives;

And no ma'amar after ma'amar -- if one yavam married by ma'amar two yevamot from one brother who came before him for yibum, i.e., he married one of them and afterwards married the other; or if two yevamim married by ma'amar, one yevamah, the second ma'amar is void, and she does not require a bill of divorce from him to annul the ma'amar, and he is not forbidden to marry her relatives; and no intercourse after intercourse -- if one yavam had intercourse with two yevamot, or if two yevamim had intercourse with one yevamah, the first act of intercourse counts as yibum, and the second is an act of licentiousness; she does not require a bill of divorce as a result of this second act of intercourse, and the second yavam is not forbidden to marry her relatives; and no halitzah after halitzah -- if one yavam submitted to halitzah from two yevamot, or if two yevamim submitted to halitzah from one yevamah, the second halitzah is void, and she is permitted to marry into the priesthood, and he is permitted to marry her relatives.

But the Sages say, There is a bill of divorce after a bill of divorce -- since the bill of divorce does not completely release the yevamah from her tie, for she still requires halitzah to be permitted to be married to another (as explained in the introduction to this mishnah), therefore the second bill of divorce is valid, and he is forbidden to marry her relatives;

And there is ma'amar after ma'amar -- as ma'amar does not constitute a complete contract of marriage with the yevamah as does consummation, but only a partial contract of marriage, therefore the second ma'amar is also valid and she requires a bill of divorce, and he is forbidden to marry her relatives; but there is nothing after intercourse or after halitzah -- as the consummation constitutes a complete contract of marriage for the yevamah, and halitzah completely dissolves the tie, whatever yavam does to the yevamah's rival after intercourse, or after the halitzah, or whatever another yavam does to this yevamah, has no legal significiance. The halakhah follows the Sages.

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