Daf Yomi - Yevamos 44 - Highlights

The Mishna states: There were four brothers married to four women and then they all died childless; the eldest (surviving brother) has permission to perform yibum with all of them.

One who was married to two women and he died childless; the yibum or chalitzah with one of them releases her co-wife from any obligation.

If one of the women was qualified to marry a Kohen, and one was unfit to a Kohen; if the yavam will be performing chalitzah, he should do so with the one who is unfit, and if he is performing yibum, he should do so with the one who is qualified. (43b – 44a)

The Mishna had stated: There were four brothers married to four women and then they all died childless; the eldest (surviving brother) has permission to perform yibum with all of them.

The Gemora asks: We have learned in a braisa that the elders offer him good advice prior to performing a yibum. Wouldn’t they persuade him not to perform yibum with all four widows because he will not be able to provide for them?

The Gemora answers: We are referring to a case where he has the means to provide for them.

The Gemora asks: If so, why does the Mishna mention only four yevamos; he should be permitted to take even more?

The Gemora answers: it is good advice not to take more than four; this way, he will be able to engage in marital relations with each wife once every month. (44a)

The Mishna had stated: One who was married to two women and he died childless; the yibum or chalitzah with one of them releases her co-wife from any obligation.

The Gemora asks: Let him perform yibum with both of them?

Rabbi Chiya bar Abba answers in the name of Rabbi Yochanan: We derive from the verse that one may build only one house for his brother, not two.

The Gemora asks: Let him perform chalitzah with both of them?

Mar Zutra bar Tuvia answers: We derive from the verse that one may perform chalitzah with only one house of his brother, not two.

The Gemora asks: Let him perform a yibum with one and a chalitzah with the other?

The Gemora answers: Whoever is subject to yibum is subject to chalitzah and whoever is not subject to yibum is not subject to chalitzah.

The Gemora asks: Perhaps there is only a mitzvah of yibum if there is one widow; however, when there are two widows, there is no mitzvah altogether?

The Gemora answers: We derive form the fact that the Torah repeats the word “his yevamah,” “his yevamah” that there is an obligation even when there are two widows. (44a)

The Mishna had stated: If one of the women was qualified to marry a Kohen, and one was unfit to a Kohen; if the yavam will be performing chalitzah, he should do so with the one who is unfit, and if he is performing yibum, he should do so with the one who is qualified.

Rav Yosef said: Here is where Rebbe taught that a person should not spill out the extra waters from his pit when others may have a need for it. (If he is performing chalitzah anyway, which will render her forbidden to a Kohen, he should perform the chalitzah with the widow who is anyway disqualified to marry a Kohen.) (44a)

The Mishna states: One who remarries his divorcee, or one who marries his chalutzah, or one who marries the relative of his chalutzah is required to divorce her, and a child from that marriage will be a mamzer; these are the words of Rabbi Akiva. The Chachamim say that the child is not a mamzer (since he only violated a negative prohibition, and not a kares prohibition).

The Chachamim admit that one who marries the relative of his divorcee that the child will be a mamzer (there would be kares in this situation). (44a)

The Gemora asks: Does Rabbi Akiva actually hold that one who marries the relative of his chalutzah the child is a mamzer? Didn’t Rish Lakish state: Here is where Rebbe stated: The prohibition of taking a divorcee’s sister is Biblical, whereas the prohibition of taking a chalutzah’s sister is merely Rabbinical. How can a Rabbinical prohibition produce a mamzer?

The Gemora emends the Mishna to be referring to the relative of his divorcee.

The Gemora provides support for this answer by the fact that the Mishna concluded by stating that the Chachamim admit that one who marries the relative of his divorcee that the child will be a mamzer. If Rabbi Akiva mentioned this case, it is understandable that the Mishna would say that the Chachamim admit regarding this case; but if Rabbi Akiva never discussed this case, why did the Chachamim discuss it?

The Gemora rejects this proof: Perhaps the Chachamim are informing us that a mamzer can be produced from a marriage which is punishable by kares (unlike Rabbi Yehoshua’s opinion that only a marriage punishable by a court-imposed execution can produce a mamzer).

The Gemora answers: This cannot be the point of our Mishna because there is a Mishna (49a) that discusses this explicitly. The Mishna states: How is a mamzer produced? Rabbi Akiva says: Any union with a relative subject to a negative prohibition will produce a mamzer. Shimon Hatimni said: A mamzer can only be produced from a marriage which is punishable by kares and the halacha follows his words.

The Gemora asks: Perhaps our Mishna is stating his view anonymously (to indicate that the halacha follows this opinion)?

The Gemora answers: If so, the Mishna should have listed other examples of unions that are punishable by kares; by the fact that the Mishna only mentioned the relative of his divorcee is a proof that Rabbi Akiva was discussing this case as well.

The Gemora objects to this proof: Perhaps the Mishna mentioned the case of one who marries the relative of his divorcee because Rabbi Akiva discussed similar cases, namely, one who remarries his divorcee, or one who marries his chalutzah, or one who marries the relative of his chalutzah?

The Gemora reverts to the original reading of the Mishna: Rabbi Akiva maintains that one who marries the relative of his chalutzah, the child is indeed a mamzer.

Rabbi Chiya bar Abba in the name of Rabbi Yochanan provides the Scriptural source indicating that the relatives of one’s chalutzah is forbidden by Biblical law. (44a)

Rav Yosef said in the name of Rabbi Shimon bar Rebbe: everyone admits regarding one who marries his divorcee that the child born from that union will be tainted in respect to the Kehunah (she would not be allowed to marry a Kohen).

The Gemora explains: Even Shimon Hatimni, who maintains that a marriage which is subject to a negative prohibition will not produce a mamzer, but the child will be tainted for the Kehunah.

This is derived through a kal vachomer from the prohibition of a widow to a Kohen Gadol. The prohibition regarding a widow is not applicable to all men, only to a Kohen Gadol, and nevertheless, a child from such a union will be tainted for the Kehunah; then certainly regarding a divorcee, where every man is prohibited from remarrying his divorcee, the child should be tainted for the Kehunah.

The Gemora asks on this kal vachomer: We cannot bring proof from a widow because we rule strictly there; a widow who cohabitates with a Kohen Gadol becomes disqualified herself. Perhaps that is the reason that the child will be tainted for the Kehunah. A divorcee, who is remarried by her husband does not become disqualified for Kehunah; perhaps the child is not tainted either.

Furthermore, we have learned previously regarding one who remarries his divorcee that only she is an abomination, but her children are not.

Furthermore, the Gemora cites a braisa: Rabbi Akiva said: One who remarries his divorcee, or one who marries his chalutzah, or one who marries the relative of his chalutzah, the kiddushin does not take effect and a get is not required. She is disqualified, and her child is disqualified. We force him to send her away. The Chachamim maintain that the kiddushin does take effect and a get is required. She is qualified, and her child is qualified.

The Gemora assumes that the child is qualified for Kehunah, which would prove that the kal vachomer is incorrect. The Gemora deflects this question and explains that the braisa means that the child is not a mamzer, and thus qualified to marry into the congregation. This is in contrast to Rabbi Akiva’s viewpoint that the child born from a union with a woman who is subject to a negative prohibition is indeed a mamzer.

The Gemora deflects the second question by stating that the verse is not teaching us that only she is an abomination, but her children are not; rather it is teaching us that her co-wife is not an abomination, and can be taken for yibum; the child is tainted.

The first question on the kal vachomer remains, and therefore the Gemora emends the original ruling: Rav Yosef said in the name of Rabbi Shimon bar Rebbe: everyone admits regarding one who marries a woman subject to the penalty of kares that the child born from that union will be tainted in respect to the Kehunah.

The Gemora explains: Even Rabbi Yehoshua, who maintains that only a marriage punishable by a court-imposed execution can produce a mamzer will agree that the child is tainted for the Kehunah.

This is derived through a kal vachomer from the prohibition of a widow to a Kohen Gadol. The prohibition regarding a widow is not applicable to all men, only to a Kohen Gadol, and nevertheless, a child from such a union will be tainted for the Kehunah; then certainly regarding a woman subject to the penalty of kares, where every man is prohibited from marrying such a woman, the child should be tainted for the Kehunah.

If you will ask that a widow is different because she herself becomes disqualified, we can answer that a man who cohabits with a woman subject to the penalty of kares renders her a zonah, and she too becomes desecrated and thus forbidden to marry a Kohen. (44a – 44b)

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