Wednesday, August 29, 2007

Daf Yomi - Yevamos 119 - Highlights

Mishna

The Mishna states: If a woman’s husband and her co-wife went overseas and they informed her that her husband has died (based on the report, she would be free to remarry, however, it is uncertain if she falls for yibum), she should not marry or be taken in yibum until she determines if her co-wife is pregnant or not.

If the woman had a mother-in-law who went overseas, we do not need to be concerned that the mother-in-law gave birth to a son, and now the woman will be subject to yibum to her husband’s new brother. If the mother-in-law went overseas when she was pregnant, we are concerned that she gave birth to a son, and the woman will be subject to yibum. Rabbi Yehoshua said: We are still not concerned, and she is permitted to marry anyone. (119a)
Consideration for the Minority

The Gemora asks: It is understandable why she cannot be taken in yibum, for perhaps her co-wife is pregnant, and if she will cohabit with her husband’s brother, they would be infringing on the prohibition of cohabiting with a brother’s wife. But why can’t she marry a stranger? Let us follow the majority of women who conceive and bear children (we should assume that the co-wife did in fact conceive and gave birth to a child, thus exempting the co-wife from yibum or chalitzah)? Shall we say that the Mishna is following Rabbi Meir’s opinion, who is concerned on account of the minority?

The Gemora answers: The Mishna can be following the opinion of the Rabbis as well; for they follow a majority only when the majority is “before us,” like in the case of the “nine stores” (which were selling permitted meat, while one shop in their vicinity was selling forbidden meat; if between these shops a piece of meat was found and it is not known from which shop it came, it is assumed to be permitted meat, since the majority of the shops were selling meat of such a character) or “Sanhedrin” (a majority of whom (twelve against eleven) are in favor of a certain decision). However, in this case, where the majority (of women in general who are assumed to conceive and bear) is “not before us,” even the Rabbis do not follow the majority.

The Gemora asks: But in the case of a minor boy or minor girl, where the majority is “not before us,” and nevertheless, we follow the majority? For it was taught in a braisa: The Gemora challenges Rabbah’s explanation: How can you say that Rabbi Eliezer agrees with Rabbi Meir? Didn’t we learn the following braisa: Rabbi Meir said: A minor boy or girl does not perform chalitzah or yibum. The Rabbis replied to Rabbi Meir: That which you said that a minor should not perform chalitzah is understandable because the Torah uses the term “ish,” man in the portion regarding chalitzah, and we compare the laws of a man to a woman. However, what is your rationale for saying that a minor should not perform a yibum? Rabbi Meir responded: A minor boy should not perform a yibum because we are concerned that he might be found to be a saris (he cannot father a child due to defects in his body); a minor girl should not perform a yibum because we are concerned that she might be found to be an aylonis. If they would perform yibum, it would be tantamount to cohabiting with an ervah. The Rabbis, however, maintain that we follow the majority of minor boys, who are not sarisim, and we follow the majority of minor girls, who are not aylonisos. (The majority spoken of here is, surely, one which is not actually present, and the Rabbis are nevertheless guided by it.)

Rather, it is clear that the Mishna is following Rabbi Meir’s opinion. (119a)


Confirmed Status and Majority

The Gemora analyzes the Mishna’s latter clause. The Mishna stated: If the woman had a mother-in-law who went overseas, we do not need to be concerned that the mother-in-law gave birth to a son, and now the woman will be subject to yibum to her husband’s new brother.

The Gemora asks: If our Mishna follows Rabbi Meir’s viewpoint that we are concerned for the minority, we should be concerned that the mother-in-law gave birth to a son? One should be guided by the majority of women, and the majority of women conceive and bear while a minority miscarry, and, since all those who give birth, half bear males and half bear females, the minority of those who miscarry should be added to the half of those who bear females, and so the males would constitute a minority which should be taken into consideration! (And, contrary to the ruling in our Mishna, the woman should be forbidden to marry a stranger?)

The Gemora answers: It is possible that since the woman was confirmed (when her mother-in-law went overseas) in her status of permissibility to strangers (since there was no yavam at that time), the possibility of the birth of a yavam does not need to be taken into consideration (we rely on the chazakah that she was not subject to yibum).

The Gemora asks: But in the former case of the Mishna, where she was confirmed in the status of eligibility for yibum (since her husband had no children when he departed), let her be taken for yibum based on the original presumption?

Rav Nachman answers in the name of Rabbah bar Avuha: In the Mishna’s first case, where a prohibition which is subject to the penalty of kares is involved (cohabiting with a brother’s wife), the possibility of the birth of a son had to be provided against; in the Mishna’s latter case, however, where a mere prohibition is involved (a yevamah marrying a stranger), they were not concerned with the possibility that the mother-in-law gave birth to a son.

Rava asked: Both prohibitions are Biblical; aren’t we obligated to avoid all Biblical transgressions, even mere prohibitions?

Rather, Rava explains the Mishna as follows: In the Mishna’s first case, the woman's confirmed status (it was an established fact that her husband had no children and that a yavam was in existence) would subject her to yibum while the majority principle (most women bear viable children and her co-wife’s child would exempt her from yibum) would enable her to marry any stranger; and though the confirmed status is not as compelling as a majority, the minority of women who miscarry must be added to the confirmed status so that the factors on either side are equally balanced (it is a half and a half; her confirmed status plus the minority of miscarriages pointing to her being subject to yibum, while the majority principle points to permissibility to marry any stranger). Hence, she should not marry or be taken in yibum until she determines if her co-wife is pregnant or not. In the Mishna’s latter case, however, the woman's confirmed status (as one who has no yavam) as well as the majority principle (miscarriages and the births of females constitute a majority against the minority of births of viable males) points to the permissibility of marriage with any stranger; viable males constitute a minority of a minority (besides the fact that viable males are in a minority, the possibility of the birth of a viable male is still less to be taken note of in view of the confirmed status of the woman) and a minority of a minority is not taken into consideration even by Rabbi Meir. (119a – 119b)
Waiting Forever

The Mishna stated: If a woman’s husband and her co-wife went overseas and they informed her that her husband has died (based on the report, she would be free to remarry, however, it is uncertain if she falls for yibum), she should not marry or be taken in yibum until she determines if her co-wife is pregnant or not.

The Gemora asks: Is she prohibited from marrying a stranger forever? Let her perform chalitzah with the yavam, and then she should be permitted to marry anyone?

Ze'iri replied: She must wait on account of herself three months (just like any other woman whose husband died), and on account of her co-wife, she must wait nine months (since her chalitzah will not be valid if the co-wife produced a viable child), and then she may perform chalitzah and marry.

Rabbi Chanina said: She must wait on account of herself three months, but on account of her co-wife, she remains prohibited forever (until it is definitely ascertained whether her co-wife had given birth to a viable child).

The Gemora repeats its original question: Is she prohibited from marrying a stranger forever? Let her perform chalitzah with the yavam, and then she should be permitted to marry anyone?

Abaye bar Avin and Rabbi Chanina bar Avin answer: This is a preventive measure against the possibility that the child might be viable as a result of which, we will require an announcement that she is permitted to marry a Kohen (since the chalitzah was unnecessary).

The Gemora asks: So, why don’t we make the announcement?

The Gemora answers: Perhaps someone will be present by the chalitzah and will not hear of the announcement; he will be under the false impression that a chalutzah is permitted to a Kohen. (119b)

Mishna

The Mishna states: If the wives of two brothers returned from overseas, and one says, “My husband died,” and that one says, “My husband died,” that one is prohibited because of the husband of this one, and this one is prohibited because of the husband of that one. (A woman is eligible to tender evidence on the death of her husband in so far only as to enable herself to marry again. She is ineligible, however, to give evidence enabling her sister-in-law to marry again.) If one had witnesses that her husband died, and the other one does not, the one who has witnesses is prohibited (to marry a stranger, since there are no witnesses to testify to the death of the yavam; the evidence of his wife alone is not sufficient for this purpose), and the one who does not have witnesses is permitted (to marry any stranger, since she herself is believed in respect of the death of her husband while in respect of the death of the yavam, the evidence of the witnesses is available). If this one has sons and that one does not have sons, the one who has sons is permitted, and the one who does not have sons is prohibited. If they were married by yibum, and the yevamim died, they are prohibited from marrying (any stranger; though the evidence of each woman was valid to enable herself to be taken for yibum, it is not valid to exempt her sister-in-law- from the zikah-attachment, and the possibility that their absent yavam’s (the first husbands) were still alive must he taken into consideration). Rabbi Elozar says: Since they were permitted to the yevamim, they are permitted to any man. (119b)

[END]

4 comments:

Michael Post said...

At the end of the Daf, Rav Pappa answers the challenge to the question about announcing a woman as fit for the Kehunah by explaining that our Mishnah is talking about a gerushah, in which case she is already prohibited to a Kohen.

In that case, however, why would the woman have to wait AT ALL? She needs to wait 3 months in case she herself is pregnant, for paternity purposes, but why should she wait at all to see if the co-wife is pregnant?

If she does Chalitzah right after her own 3 month period, then if the co-wife was not pregnant, it was a good Chalitzah, and if she was, it was an unnecessary Chalitzah, but either way she would be permitted to remarry.

Avromi said...

I see you stressed "at all," but then you answer your own question; she needs to wait the three months to ascertain the lineage of her child.

M. P. said...

Let me try to restate it as CASE II, adding a related CASE I. You are welcome to edit my comment to make it more comprehensible. I guess I shouldn’t be writing this late at night…



CASE I: If a woman is pregnant, her husband dies, she does Chalitzah while pregnant, and then miscarries, was it a valid Chalitzah? If no, why not?



CASE II: If a woman’s husband dies, and she has no children, but she is not sure if her co-wife has children, then after waiting 3 months to see if she herself is pregnant, I would think that she should be able to do Chalitzah immediately, without waiting an extra 9 months to determine if the co-wife has a child. If the co-wife does NOT have a child, then the Chalitzah is good and she can marry anyone. If the co-wife DOES have a child, then the Chalitzah was meaningless, but the presence of the child means she can marry anyone. Thus, either way she should permitted to marry immediately after 3 months. To address the concern about her being forbidden to a Kohen, let’s say that she was a gerushah

Avromi said...

case # 1 is machlokes reb yochanan and rish lakish on 35b

case # 2, we are concerned that she is pregnant and will give birth to a viable child; the chalitzah done at that time is ineffective