Talmud - Yevamot 91a יבמות צ״א א׳

The Gemara asks: It is obvious that she is disqualified, as she is a zona, a woman who has had sexual relations with a man forbidden to her by the Torah and with whom she cannot establish a marital bond. The Gemara answers: Since it was necessary for the tanna to mention the disqualification of a daughter of a Levite from partaking of the tithe, he added that an Israelite woman is likewise disqualified from marrying into the priesthood.

The Gemara asks: And a daughter of a Levite, is she disqualified from partaking of the tithe by licentiousness? But isn’t it taught in a baraita: In the case of a Levite woman who was captured, who may have had intercourse with one of her captors, or even in a case where a Levite woman definitely engaged in licentious sexual relations, we nevertheless give her first tithe and she may eat it? This indicates that an act of fornication does not disqualify a woman from partaking of the tithe. Rav Sheshet said: The disqualification is a penalty imposed by the Sages on this particular woman for not taking sufficient care, as she married without witness testimony as to her first husband’s death.

§ The mishna further taught that the daughter of a priest in this situation is disqualified from partaking of teruma. The Gemara explains: This statement does not refer to teruma by Torah law, as it is obvious that she is prohibited to eat this produce. Rather, she is barred even from teruma that applies by rabbinic law.

§ And the mishna also taught: Neither the heirs of this one nor the heirs of that one inherit her marriage contract. The Gemara asks: A marriage contract, what is its purpose; why mention the inheritance of a marriage contract after the mishna has just said that she is not entitled to the payment of a marriage contract at all? The Gemara answers: Rav Pappa said: This is referring to the marriage contract payment of the male sons. One of the conditions of a marriage contract is that any male children born to this woman who inherit from their father will receive the sum of her marriage contract in addition to their share of the inheritance with their other paternal brothers.

The Gemara asks: This is obvious. Since she does not have a claim for the payment of her marriage contract, she is not entitled to the other conditions of a marriage contract either. The Gemara answers: It is necessary. Lest you say that with regard to the woman herself, who committed a prohibition, the Sages penalized her, but with regard to her offspring the Sages did not penalize them, as they did nothing wrong, the tanna therefore teaches us that the entire marriage contract is canceled, along with all its conditions.

§ The mishna further taught that the brothers of this one and the brothers of that one all perform ḥalitza, and they do not consummate levirate marriage. The Gemara explains: The brother of the first one performs ḥalitza by Torah law, as that woman is legally the wife of the first husband and therefore requires ḥalitza. But he does not consummate levirate marriage by rabbinic law, as the Sages penalized her and prohibited her from returning to the first husband. Conversely, the brother of the second one performs ḥalitza by rabbinic law, so that people do not say that a childless woman can leave her yavam without ḥalitza. But he does not consummate levirate marriage, neither by Torah law nor by rabbinic law, as her marriage to the second man was an error.

§ The mishna taught: Rabbi Yosei says that the obligation of her marriage contract is upon the property of her first husband. Rav Huna said: The last Sages in the mishna, Rabbi Elazar and Rabbi Shimon, concede to the first ones, and merely add to their statement. However, the first ones do not concede to the last Sages. In other words, the second set of Sages extend the rulings of the first Sages beyond the cases to which they specifically referred.

The Gemara clarifies this statement: Rabbi Shimon concedes to Rabbi Elazar. How so? For if with regard to sexual relations, which is the main prohibition, Rabbi Shimon did not penalize her, as he claims that the intercourse of the yavam, her first husband’s brother, acquires her and exempts her rival wife, all the more so her first husband should be entitled to her found objects and her earnings, which are merely money. And yet Rabbi Elazar does not concede to Rabbi Shimon, as he claims that in the case of her found objects and her earnings, which are only money, the Sages did not penalize her, but with regard to sexual intercourse, which is a prohibition, they did penalize her.

And Rabbi Shimon and Rabbi Elazar both concede to Rabbi Yosei with regard to a marriage contract. If in the case of these matters discussed above, which are relevant when she is living under her husband’s authority and is treated as a married woman, the Sages did not penalize her, but allowed him to retain her found articles and earnings as though she were a full-fledged wife, all the more so they did not make her forfeit the marriage contract, which is designed for her to take and then leave the marriage. And by contrast, Rabbi Yosei does not concede to them. He maintains that in the case of a marriage contract, which is for her to take and leave, the Sages did not penalize her, but with regard to these other conditions, which take effect when she is still living under his authority, they did penalize her.

In contrast to Rav Huna, Rabbi Yoḥanan said: The first Sages concede to the last ones, but the last ones do not concede to the first Sages. According to Rabbi Yoḥanan, the statements of the first Sages are more inclusive, whereas the second Sages restrict and limit the previous rulings. How so? Rabbi Yosei concedes to Rabbi Elazar, as he reasons as follows: If with regard to a marriage contract, which is given from him to her, the Sages did not penalize her, as Rabbi Yosei maintains that since she did not sin willfully she is entitled to her marriage contract, all the more so they did not enforce a penalty with regard to her found objects and her earnings, which are from her to him. The Sages certainly did not cause him to forfeit something he has the right to claim from her.

And Rabbi Elazar does not agree with Rabbi Yosei with regard to a marriage contract. He claims that it is concerning her found objects and her earnings, which are from her to him, that the Sages did not penalize her. However, as pertains to the marriage contract, which is from him to her, the Sages did penalize her, as a punishment.

And Rabbi Yosei and Rabbi Elazar both concede to Rabbi Shimon, for the following reason: And if with regard to these, i.e., her found objects and earnings or her marriage contract, which are given in his lifetime, the Sages did not penalize her, then with regard to the sexual relations of the yavam, which occur after the death of the husband, is it not all the more so that they should not penalize her, and she should remain permitted? And Rabbi Shimon does not concede to them, as it is only in the case of sexual relations, which occur after his death, that the Sages did not penalize her. However, with regard to these other matters, which apply during the husband’s lifetime, the Sages did penalize her by depriving her of them.

§ The mishna taught that if she married without the consent of the court she is permitted to return to her first husband. Rav Huna said that Rav said: This is the halakha. Rav Naḥman said to him: Why do you steal in, i.e., why do you state your opinion in a sneaky manner? If you maintain in accordance with the opinion of Rabbi Shimon, then you should explicitly say: The halakha is in accordance with the opinion of Rabbi Shimon, as your halakha follows the opinion of Rabbi Shimon.

And lest you say: If I were to say that the halakha is in accordance with the opinion of Rabbi Shimon, that would erroneously indicate that I agree with him even with regard to the first case, that of a married woman who married another on the basis of one witness. If so, you should say the following: The halakha is in accordance with the opinion of Rabbi Shimon with regard to the last case. The Gemara comments: Indeed, the question of why Rav Huna did not state his ruling in this manner is difficult.

§ Rav Sheshet said: I say that when Rav dozed and was falling asleep he said this halakha. In other words, Rav did not examine the matter carefully, as this ruling is unnecessary. Rav Sheshet explains: From the fact that Rav declared a ruling of halakha, it may be inferred that others disagree with this opinion. However, there is actually no dispute here, as what could she have done? It is as though he raped her. Since she received the testimony of witnesses that her husband was dead, she had no reason to refrain from remarrying. Her actions cannot be considered willing, as why should she refrain from marrying after receiving the testimony of witnesses that her husband was dead? Her lack of knowledge in this matter renders this case analogous to a rape. And as is well known, a woman who was raped is permitted to return to her husband.

And it was further taught in a baraita: Any of those with whom relations are forbidden by Torah law do not require a bill of divorce to dissolve a union, except for a married woman who remarried by permission of the court. The Gemara infers: It is only a woman who married by permission of the court who requires a bill of divorce, but if she married based on testimony of witnesses she does not require a bill of divorce.

The Gemara further inquires: Who is the author of this baraita? If we say it is Rabbi Shimon, in his opinion does a woman who married by permission of the court require a bill of divorce from the second man? But isn’t it taught in a baraita that Rabbi Shimon says: If the court acted merely in accordance with their own instruction when they permitted a woman to remarry and her husband later arrived, it is as though this remarriage were a willful act of a man with a woman, and she is penalized like an intentional adulteress. Conversely, if she married based on testimony of witnesses, it is considered like an unwitting act of a man with a woman. Either way, neither in this case nor in that one, i.e., whether the marriage was in accordance with a decision of the court or based on witness testimony, does she require a bill of divorce, as a woman who committed adultery, whether unwittingly or intentionally, does not require a bill of divorce from the adulterer.

Rather, is it not the case that this baraita, which states that a woman who engaged in forbidden relations, including one who married based on witnesses, does not require a bill of divorce, is in accordance with the opinion of the Rabbis? But if so, there was no need to issue a ruling to this effect, as everyone agrees that the halakha follows the majority opinion.

The Gemara refutes this suggestion: Actually, the baraita is in accordance with the opinion of Rabbi Shimon, and you should answer the difficulty as follows: Rabbi Shimon says that if the court acted in accordance with their own instruction, it is as though there was the intention of a man with a woman, i.e., as though the man had relations with the woman for the purpose of marriage, and therefore she requires a bill of divorce from him. Conversely, if she married based on testimony of witnesses they considered it as though there was no intention of a man with a woman, as he had relations with her without the intention of marriage, and in that case she does not require a bill of divorce.

Rav Ashi said that there is no difficulty here at all, as Rabbi Shimon’s statement should be explained differently. In fact, Rabbi Shimon taught his ruling with regard to the prohibition involved, not the issue of a bill of divorce, and this is what he said: If the court acted in accordance with their own instruction, it is as though this was a willful act of a man with a woman, and she is therefore forbidden to her husband like a woman who intentionally engaged in relations with another man. However, if she married based on testimony of witnesses, they considered it as though it was an unwitting act of a man with a woman, and she is not forbidden to her husband.

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

Yevamot 91a examines why a suspected zona forfeits priestly marriage and tithe rights, and debates inheritance claims over her marriage contract.