Talmud - Yevamot 39a יבמות ל״ט א׳

And Abaye holds that according to Beit Hillel, with regard to the husband’s rights to his wife’s property, his hand is like her hand, but not any stronger. Accordingly, the yavam has a weaker hand in her property than she does, because the rights of a yavam are always weaker than those of the husband himself. Therefore, she is considered to be in possession of the property, and when she dies, her heirs, i.e., her father and his heirs, inherit it. However, Beit Shammai assume that the husband’s hand is stronger than his wife’s hand. Therefore, the hand of the yavam, which is weaker than the husband’s hand, is nevertheless equally as strong as the hand of the yevama, and therefore they rule that if she dies, the yavam and her heirs divide up the property.

Rava said to him: I hold that if the property was bequeathed to her when she was still under the first husband, everyone, i.e., both Beit Hillel and Beit Shammai, agrees that his hand is stronger than her hand, and therefore the hand of the yavam will be equally as strong as that of the yevama, and if she dies the property will be divided between the two sides.

Therefore, Rava presents his own resolution to the apparent inconsistency in Beit Shammai’s rulings in the mishna: Rather, both this first clause and that latter clause concern cases in which property was bequeathed to her when she was a widow waiting for her yavam. The first clause concerns a case in which the yavam had not performed a levirate betrothal with her, and the latter clause concerns a case in which he had performed a levirate betrothal with her.

The Gemara explains the rationale behind Rava’s explanation: And Rava holds that according to Beit Shammai a levirate betrothal with a yevama affords her a status equivalent in some aspects to a woman who is definitely betrothed and in other aspects to a woman about whom there is uncertainty whether she is married. The Gemara elucidates: She is similar to a woman who is definitely betrothed with regard to nullifying the levirate bond of her rival wife, so that the rival wife need not perform levirate marriage or ḥalitza. And she is similar to a woman about whom there is uncertainty whether she is married with regard to empowering the yavam to divide up the property that she attained while she was waiting for her yavam.

The Gemara notes: An interpretation of the mishna was stated in the name of Rabbi Elazar that is in accordance with the opinion of Rava. And an interpretation of the mishna was stated in the name of Rabbi Yosei, son of Rabbi Ḥanina that is in accordance with the opinion of Abaye.

The Gemara objects: And did Rabbi Elazar actually state this interpretation that is in accordance with the opinion of Rava? But didn’t Rabbi Elazar say: According to Beit Shammai a levirate betrothal acquires the yevama only with regard to nullifying the levirate bond of a rival wife so that she need not perform levirate marriage or ḥalitza? This implies that it does not acquire her with regard to enabling the yavam to inherit from her. This, then, stands in contrast to Rava’s interpretation.

The Gemara offers two possible solutions: Reverse the opinions, so that Rabbi Elazar is in accordance with Abaye, and Rabbi Yosei, son of Rabbi Ḥanina, is in accordance with Rava. And if you wish, say instead: Actually, do not reverse the opinions, since Rabbi Elazar can be understood to be in accordance with the opinion of Rava, as Rabbi Elazar could have said to you: When I said the statement that implies that a levirate betrothal acquires in a very limited sense, the intention was only that its acquisition is limited in that giving her a bill of divorce is still insufficient for her in order to release her from the levirate bond; rather, she also needs to perform ḥalitza. But to suggest that he does not acquire her with regard to dividing up the property she attained, did I say that? Certainly not, as in fact a levirate betrothal acquires her to that extent as well, as Rava assumes.

Rav Pappa said: The precise formulation of the mishna is in accordance with the opinion of Abaye, even though according to his opinion it is difficult that the mishna discusses the case in which she died.

The Gemara explains Rav Pappa’s statement: The precise formulation of the mishna is in accordance with the opinion of Abaye, as it teaches: Her property that enters and leaves the marriage with her. What is the meaning of: That enters, and what is the meaning of: That leaves? Is it not: That enters into the domain of the husband and leaves the domain of the husband when she dies, and then enters into the domain of the father? Interpreted in this way, the mishna explicitly considers the period in which she was still married to her first husband, and likewise, the case in which she came into the possession of property should be understood as referring to a case in which she did so while still married. This is consonant with Abaye’s interpretation, but not with Rava’s.

And when Rav Pappa said: Even though according to his opinion it is difficult that the mishna discusses the case in which she died, he meant as follows: Instead of disputing who has the rights to the property itself, which necessitates considering the case after her death, let Beit Hillel and Beit Shammai dispute the more immediate case when she is still alive and dispute who has the rights to the use and produce of the property.

The Gemara concludes: And there is nothing more to say concerning this matter, i.e., as Rav Pappa noted, while it is undeniable that the mishna’s formulation supports Abaye’s interpretation, it is equally true that the case discussed by the mishna would appear to challenge his interpretation.

§ The mishna states: If the yavam consummated the levirate marriage with her, then her legal status is that of his wife in every sense. The Gemara asks: With regard to what halakha is this said? Rabbi Yosei bar Ḥanina said: It is to say that once they have consummated the levirate marriage, the only way to legally dissolve the marriage is if he divorces her with a bill of divorce, but ḥalitza is of no avail, and after divorcing her, he is permitted to take her back to be his wife, as the prohibition against engaging in relations with one’s brother’s wife does not apply to her.

The Gemara examines the first clause of Rabbi Yosei bar Ḥanina’s statement: Isn’t it obvious that to sever his relationship with her, he divorces her with a bill of divorce? The Gemara explains: It is necessary to teach this because it could enter your mind to say that since it is written: “And take her to him to be his wife and consummate the levirate marriage with her” (Deuteronomy 25:5), continuing to refer to the marriage as a levirate marriage even after the verse has stated that he took her as a wife, one might claim the Merciful One is saying that the original levirate bond continues to be upon her, and therefore, with ḥalitza, yes, they can sever the relationship, but with a bill of divorce, no, the relationship would not be severed. Therefore, the mishna teaches us that she is considered to be his wife to the extent that the relationship can be severed with a bill of divorce alone.

The Gemara examines the second clause: Isn’t it obvious that after divorcing her, he is permitted to take her back to be his wife? The Gemara explains: It is necessary to teach this because it could enter your mind to say that the mitzva that the Merciful One imposes upon him, he has performed, and therefore now that there is no longer any mitzva to marry her, she should once again be established as forbidden to him by the prohibition against engaging in relations with one’s brother’s wife. To dispel this notion, the mishna teaches us that she is considered to be his wife to the extent that there is no longer any prohibition against remarrying her.

The Gemara challenges this ruling: But why not say that this is indeed so, that she should be forbidden to him? The Gemara explains: The verse states: “And take her to him to be his wife” (Deuteronomy 25:5), indicating that once he has taken her, her legal status is that of his wife in every sense.

§ The mishna states: The only exception to this is that her marriage contract will still be payable from the property of her first husband and not from the property of the yavam. The Gemara asks: What is the reason for this? The Gemara explains: A wife was acquired to him by Heaven, and since he did not choose her as a wife, he did not obligate himself to pay her marriage contract.

The Gemara qualifies the mishna’s ruling: And if she has no ability to collect her marriage contract from the first husband, since he died without leaving any property with which to pay it, the Sages instituted an ordinance for her benefit that she must receive a new marriage contract from her second husband, i.e., the yavam. This was instituted so that she will not be demeaned in his eyes such that he will easily divorce her, since doing so would incur a financial burden on his part.

MISHNA: The mitzva of levirate marriage is for the eldest of the brothers to consummate the levirate marriage. If the eldest does not want to do so, the court goes to each of the other brothers and requires them to do so. If they do not want to do so, the court returns to the eldest brother and says to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.

If a brother made his decision dependent upon the possibility that one of his other brothers will eventually consummate the levirate marriage, saying that he will do so only if they do not, then whether he makes it dependent upon a brother who is currently a minor, meaning that the yevama should wait until he matures, or upon his eldest brother, who is not currently present, meaning the yevama should wait until he comes from overseas, or upon a brother who is a deaf-mute or an imbecile, as perhaps they will recover from their disability, the court does not listen to him; rather, the judges of the court say to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.

GEMARA: An amoraic dispute was stated: Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree with regard to a case in which there is the choice between consummation of the levirate marriage by a younger brother [katan] or ḥalitza performed by the eldest brother. One said: The consummation of the levirate marriage by a younger brother is preferable, and the other one said: Ḥalitza performed by the eldest brother is preferable.

The Gemara explains: With regard to the one who said that consummation of the levirate marriage by a younger brother is preferable, this is due to the fact that the mitzva of levirate marriage is through the actual consummation of the levirate marriage, and therefore preference is always given to consummation over the performance of ḥalitza. And the one who said ḥalitza performed by the eldest brother is preferable, this is because in the presence of the eldest brother, the consummation of the levirate marriage by a younger brother is considered nothing.

The Gemara suggests proof for the first opinion: We learned in the mishna: If the eldest does not want to consummate the levirate marriage, the court goes to each of the other brothers and requires them to do so. The Gemara suggests: What, is it not that he does not want to consummate the levirate marriage but is willing to perform ḥalitza? And yet the mishna teaches: The court goes to each of the other brothers and requires them to consummate the levirate marriage. If so, conclude from here that the consummation of the levirate marriage by a younger brother is preferable.

The Gemara rejects the proof: No, the mishna might concern a case where the eldest does not want either to perform ḥalitza or to consummate the levirate marriage, and it is only because he is unwilling to do either that the other brothers are considered. The Gemara asks: If this is so, then in the corresponding situation in the mishna in which the brothers do not want to do so, the case must be that they do not want either to perform ḥalitza or to consummate the levirate marriage. But if so, why should the court invest the extra effort to return to the eldest brother to force him to fulfill his duty? Let the court force the other brothers to fulfill their duty. The Gemara responds: Since the mitzva is incumbent upon the eldest brother ab initio, it is he who is forced.

The Gemara suggests another proof: We learned in the mishna: If a brother makes his decision dependent upon a brother who is currently a minor, the court does not listen to him. The Gemara suggests: And if the consummation of the levirate marriage by a minor is preferable, why shouldn’t the court listen to him? Let the court wait, as perhaps he will mature and consummate the levirate marriage. Rather, it would appear that the mishna assumes that consummation by a younger brother is not preferable.

The Gemara responds: But even according to your reasoning that ḥalitza performed by an elder brother is preferable, what about the next case in the mishna, where a brother asks to wait until the eldest brother comes from overseas? In that case, as well, the mishna rules: They do not listen to him; but why shouldn’t they listen to him? Let the court wait, as perhaps he will come and at the very least perform ḥalitza. Rather, it is clear that the reason for the mishna’s ruling is that we do not delay the performance of any mitzva; therefore, if one of the brothers is currently unable to perform the mitzva, he is not considered at all. Consequently, no proof can be derived from the mishna.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Yevamot 39a examines Beit Hillel and Beit Shammai's disputes over a levirate widow's property rights and inheritance claims involving her yavam.