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Week 53- Thursday - 30 November 2000

YEVAMOT: CHAPTER 5: MISHNAH 6

If he submitted to halitzah, and married by ma'amar, or he gave a bill of divorce, and he had intercourse; or, if he had intercourse, and married by ma'amar, he gave a bill of divorce and he submitted to halitzah -- nothing follows halitzah. Whether at the beginning, or in the middle, or at the end. And intercourse: when it is at the beginning -- nothing follows it. In the middle or at the end -- something can follow it. Rabbi Nehemiah say, It is all one, intercourse and halitzah, whether at the beginning, or in the middle, or at the end -- nothing follows it.

Kehati

This mishnah is a continuation of mishnah 3 of this chapter, dealing with one yavam and one yevamah. It repeats the last section of mishnah 3, in order to follow it up with the last secton of mishnah 3, in order to follow it up with the last section of this mishnah ("Whether at the beginning..."). The law of this mishnah, however, applies in all cases, whether one yavam and one yevamah, or one yavam and two yevamot, or two yevamim and one yevamah (see Tosefot Yom Tov).

The following was taught in mishnah 3:

If he submitted to halitzah, and married by ma'amar, or he gave a bill of divorce and he had intercouse, or, if he had intercourse and married by ma'amar, he gave a bill of divorce and he submitted to halitzah -- nothing follows halitzah -- i.e.: Whether he submitted to halitzah at the beginning -- and afterwards married by ma'amar and gave a bill of divorce, or in the middle -- e.g., he gave a bill of divorce, submitted to halitzah, and married by ma'amar, the ma'amar after halitzah not being valid at all, and she does not require a bill of divorce from his ma'amar, or at the end -- if he married by ma'amar and gave a bill of divorce, and afterwards he submitted to halitzah, nothing follows halitzah, and if he again married by ma'amar after the halitzah, she does not require a bill of divorce, for the halitzah releases her completely from her yibum tie.

And -- but regarding -- intercourse: when it is at the beginning -- e.g., in the case of one yavam and two yevamot, he first had intercourse with one, and afterwards married by ma'amar the other, nothing follows it -- for the yibum tie has already been entirely cut.

But in the middle -- e.g., he gave a bill of divorce, had sexual intercourse, and married by ma'amar, or at the end -- e.g., he gave a bill of divorce, married by ma'amar, and had intercourse, something can follow it -- since unlawful sexual intercourse does not effect yibum and she is still tied to the yavam, she requires halitzah.

Rabbi Nehemiah says, It is all one whether intercourse and -- or -- halitzah, whether at the beginning, or in the middle, or at the end -- even if intercourse followed the bill of divorce and ma'amr, nothing follows it -- and she goes forth with a bill of divorce without halitzah. If he married by ma'amr after intercourse, e.g., in the case of two yevamot, after he had intercourse with one woman he married the other by ma'amar, the ma'amar is not effective (Rashi; Bartenura). Other commentators state that even according to the opinion of Rabbi Nehemiah, unlawful sexual intercourse does not completely cut the yibum tie, and she requires halitzah, and the clause "nothing follows it" means that ma'amar is invalid after the act of intercourse (Maharshal, Ramban).

YEVAMOT: CHAPTER 6: MISHNAH 1

If a man had sexual intercourse with his yevamah, whether in error or intentionally, whether under constraint or willingly; even if he acted in error and she intentionally, he intentionally and she in error, he under constraint and she not under constraint, she under constraint and he not compelled, it is all one whether he has partial or full intercourse -- he has acquired her. And there is no distinction between intercourse and intercourse.

Kehati

We have already stated that the contract of marriage with the yevamah is effected by an act of sexual intercourse, as it is written, "Her husband's brother shall go in [yavo] to her, and take her to him to wife" (Deut. 25:5). This mishnah teaches the parameters of acquiring the yavamah by intercourse.

If a man has sexual intercourse with his yevamah, whether in error -- e.g., he thought she was someone else (see Tosefot Yom Tov), or intentionally -- he did not have in mind the mitzvah of yibum, but licentiousness, whether under constraint -- forced to rape her, or willingly -- to perform the mitzvah of yibum. "Willingly," is obvious, but this is the Tanna's style (Tosafot); even if he -- the yavam, acted -- had intercourse with his yevamah, in error -- as explained above, and she intentionally -- her intention was licentious; or he acted intentionally and she in error -- e.g., she thought that he was someone else; or

He under constraint and she not under constraint or she under constraint and he not under constraint -- the law is the same if both of them acted in error, or intentionally, or under constraint -- it is all one whether he has partial -- he does not complete his intercourse, or full intercourse -- in all these cases he -- the yavam, has acquired her -- and she becomes his wife in all respects (Hameiri). According to another interpretation, "he acquired" the inheritance of her dead husband, and if he wants to send her away he must give her a bill of divorce (Rashi; Bartenura; see also Tosefot Rabbi Akiva Eiger).

And there is no distinction between intercourse and intercourse -- the Gemara explains this clause as meaning that there is no distinction between natural and unnatural intercourse and even in the case of the latter he has acquitted her.

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