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Steinsaltz

In the case of a widow waiting for her yavam to take her in levirate marriage or perform ḥalitza, if his brother betrothed her sister they said in the name of Rabbi Yehuda ben Beteira: They say to the brother who betrothed her: Wait and do not marry your betrothed until your brother performs the required action, either ḥalitza or levirate marriage. This is because until that time the levirate bond is still applicable and the woman betrothed to you is forbidden to you as the sister of a woman bonded to you. And Shmuel said: The halakha is in accordance with the opinion of Rabbi Yehuda ben Beteira. From here one may infer that Shmuel holds that the levirate bond is substantial.

Rav Yosef said to him: And if it were the opinion of Rav, what problem would there be? Abaye said to him: It is difficult because there would be a contradiction between the opinion of Rav and another statement of Rav, since Rav Huna cited Rav, and the conclusion from his statements was that the levirate bond is not substantial. He said to him: Rav Huna and Rav Yehuda each cited Rav. Perhaps they are amora’im and disagree in accordance with the opinion of Rav, i.e., with regard to his opinion? The Gemara answers: Since that which was stated in the name of Shmuel was explicit, while that said in the name of Rav must be explained as an amoraic dispute, we will not leave that statement said explicitly in the name of Shmuel and explain it as an amoraic dispute according to the opinion of Rav.

Rav Kahana said: I reported this discussion before Rav Zevid of Neharde’a. He said: That is how you teach this, without knowing for certain that Rav Yehuda was stating the halakha in the name of Shmuel. We learn it explicitly: Rav Yehuda said that Shmuel said: In the case of a widow waiting for her yavam who died before he could perform ḥalitza or levirate marriage, he is prohibited from marrying her mother. Apparently Shmuel holds that the levirate bond is substantial. And Shmuel conforms to his standard line of reasoning, as Shmuel also said: The halakha is in accordance with the opinion of Rabbi Yehuda ben Beteira.

The Gemara comments: Both statements by Shmuel on the subject are necessary and there was no redundancy here, as, if he were to teach us only the principle that the levirate bond is substantial, I would say that this applies only to the case of one yavam but not to a case of two yevamin, where the levirate bond is not as strong. This comes to teach us that even in the case of two yevamin there is a bond, and that is the conclusive halakha put forth by Rabbi Yehuda ben Beteira. And if he were to teach us only that the halakha is in accordance with the opinion of Rabbi Yehuda ben Beteira, I would say that this applies only in the case where the woman awaiting levirate marriage is living, but after her death the levirate bond is terminated and he is permitted to marry her relatives. This comes to teach us that the levirate bond is not terminated without cause but rather it is necessary to perform some act in order to exempt her from it.

MISHNA: If there were two brothers, and one died, and the second entered into levirate marriage with his brother’s wife while he was already married to another woman, and subsequently a third brother was born to them, and the second brother then died, whereby both of his wives happened before the third brother for levirate marriage, then the first woman, who was the wife of the first brother, is exempt due to the fact that she is the wife of a brother with whom the third brother did not coexist, and the second woman, who was the first wife of the second brother, is exempt due to her rival wife. If the second brother had performed only levirate betrothal with her and then died before fully marrying her, the second woman performs ḥalitza and may not enter into levirate marriage, as the levirate betrothal is not considered a sufficiently valid marriage so as to render her the rival wife of a relation forbidden to the third brother.

Rabbi Shimon says with regard to the first clause of the mishna: The third brother either enters into levirate marriage with whichever one he wishes, or he performs ḥalitza with whichever one he wishes. Since he was born after his second brother had already entered into levirate marriage with the first brother’s widow, she is considered the wife of a brother with whom he did coexist, not the wife of a brother with whom he did not coexist. Therefore, he may enter into levirate marriage with her.

GEMARA: Rav Oshaya said: Rabbi Shimon’s opinion differed even on the first mishna. That is, Rabbi Shimon disagreed not only in the case stated explicitly in this mishna, in which the newly born brother came into the world after the widow of his first brother had already married his second brother, but he also disagreed in the case of the first mishna in the chapter, where the third brother was born prior to his second brother entering into levirate marriage with the widow. From where is this derived? Rav Oshaya came to this conclusion from the fact that it teaches a superfluous mishna.

How so? In accordance with whose opinion is it teaching the section of the first clause, i.e., the previous mishna? If we say it is the opinion of the Rabbis, who prohibit marriage to the wife of a brother with whom one did not coexist in all cases, then let us look at the second mishna. Now that even in the case where the second brother entered into levirate marriage and afterward the third brother was born, such that when he found her, i.e., when he was born, she had a permitted status, as she was already married to the second brother, she was never in his lifetime the wife of a brother with whom he did not coexist but was in fact for him the wife of a living brother. Nevertheless, even under such circumstances, the Rabbis prohibit him from entering into levirate marriage with her. Is it necessary, then, to teach the case presented in the first mishna of a third brother who was born and subsequently the second brother entered into levirate marriage with the wife of the first brother? According to the opinion of the Rabbis, this first mishna is redundant. Rather, is it not that it was necessary to state this first mishna for the opinion of Rabbi Shimon?

If so, this is how it must be understood: The first mishna was taught in order to convey to you the far-reaching nature of the opinion of Rabbi Shimon, which allows even the case specified in the first mishna, and the latter clause, i.e., the present mishna, was taught to convey the far-reaching nature of the opinion of the Rabbis, that even if the third brother was born after levirate marriage to the second brother she remains forbidden to the third brother. And by right it should have explained that Rabbi Shimon disagrees even in the first mishna, but the author of the mishna waited until the Rabbis finished their words, and then he went back and wrote that Rabbi Shimon disagreed with them.

The Gemara asks: But according to the opinion of Rabbi Shimon, how can you find this case of the wife of a brother with whom he did not coexist? The Gemara answers: It is in the case of a single brother who died and subsequently another brother was born to him. Here, the widow would be the wife of a brother with whom he did not coexist, and she would not be required to perform ḥalitza or enter into levirate marriage with him. Alternatively, it can be found in the case of two brothers, one of whom died, and the remaining brother did not take the deceased brother’s wife in levirate marriage, and did not die, and in the meantime a third brother was born. She still has the levirate bond due to the deceased brother, who was a brother with whom the newly born brother did not coexist.

The Gemara proceeds to clarify Rabbi Shimon’s position: Granted, in the case when the second brother first performed levirate marriage and subsequently the third brother was born, it is possible to explain that when the third brother found her, i.e., when he was born, he found her in a permitted state because when he was born she was already the wife of a living brother with whom he coexisted. But if he was born and subsequently the second brother performed levirate marriage, what is the reason that Rabbi Shimon renders her permitted? The Gemara answers: One must say that Rabbi Shimon holds that the levirate bond is substantial, and that the bond itself created a tie of kinship. Moreover, a woman with a levirate bond is considered like a married woman. Since there is a bond between the yevama and the living brother it is as though she were already married to him. Accordingly, she is, for the new brother, like the wife of his brother with whom he coexisted.

Rav Yosef strongly objects to this: Now that in the case of a levirate bond and a levirate betrothal together Rabbi Shimon is uncertain as to whether she is similar to a married woman or an unmarried woman, is it necessary to say that by levirate bond alone she is not like a married woman? If so, how can the Gemara assume that for Rabbi Shimon, the levirate bond alone gives her the status of a married woman?

What is the proof that this is Rabbi Shimon’s opinion? As we learned in a mishna (31b): In the case of three brothers who were married to three unrelated women, and one of the brothers died, and the second brother performed levirate betrothal with the widow and subsequently died, then these women, both the first wife of the second brother and the betrothed widow of the first brother, must perform ḥalitza and may not enter into levirate marriage with the third brother.

What is the reason that the wife of the first brother is not eligible for levirate marriage? As it is stated: “And one of them dies…her brother-in-law will have intercourse with her and will take her to him to be his wife and consummate the levirate marriage” (Deuteronomy 25:5). From here it is derived: She who is subject to a levirate bond with a single yavam enters levirate marriage and not she who is subject to a levirate bond with two yevamin. This woman requires levirate marriage due to the death of the first brother, and also, due to the subsequent levirate betrothal, requires levirate marriage following the death of the second brother.

However, Rabbi Shimon says: Let him enter into levirate marriage with whichever he wishes and perform ḥalitza with the second. Rabbi Shimon does not accept the homiletical interpretation forbidding a woman who is subject to two levirate bonds. The Gemara explains his opinion: Rabbi Shimon does not allow him to take both in levirate marriage. Why not? Perhaps the levirate bond is substantial, and combined with the levirate bond to the second brother the woman might be considered to be already married to the second brother, and then these two women would be two yevamot who come

Talmud - Bavli - The William Davidson digital edition of the Koren No=C3=A9 Talmud
with commentary by Rabbi Adin Steinsaltz Even-Israel (CC-BY-NC 4.0)
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