Saturday, November 29, 2014

Yevamot 56 – What is legally considered an act of cohabitation?

We mentioned that to effect yibum and acquire his yevama as a wife, one's beginning of cohabitation is sufficient. The same applies to being liable for cohabitation with any woman who is prohibited to him. But what is considered the beginning of cohabitation?

Shmuel says this is the contact (literally, "kiss") of the genitals. He brings an analogy: imagine a man who places his finger on his mouth; it is impossible not to push the flesh of his lips. In other words, Shmuel agrees that a minimal degree of penetration is required, but he argues that it is inevitably achieved by contact.

However, in the name of Rabbi Yochanan, they brought another opinion: insertion of the corona constitutes the beginning of cohabitation, with all the legal consequences. What is then considered the completion of the act? – Insertion of the part of the member beyond the corona. What about the emission of seed? – Many say that it is legally not required. What about the "emission of seed" mentioned by the Torah? – they say that the situation should be fit to emit it, but not really do it.

And for what things does he acquire his yevama? – If he is a Kohen, she can already eat Kohen's portion (terumah), which is ordinarily permitted only to Kohen's family. He inherits his brother. He can annul her vows and bury her – which is ordinarily prohibited to a Kohen for anybody but his close relatives.

Art: A Couple Sitting At A Table In An Inn by (after) Jacob Toorenvliet

Thursday, November 27, 2014

Yevamot 54 – Erection is a state of mind

One who decides to do a yibum – to cohabit with his deceased brother's wife (“yevamah”) – can do it in any of the following ways. Whether done willingly for a mitzvah or by coercion or by mistake, whether he only begins the act or completes it, and whether it is natural or anal intercourse – it makes no difference, and he acquires her as a wife.

How can a man be coerced? Could it be that idolaters forced him? – No, this explanation won't stand: since his member was erect, it must be that he found the situation somewhat desirable and was, therefore, a willing participant. (This rule is called “Erection is a state of mind.”) Can we suggest that he was sleeping? – No, for then he lacks the intelligence to affect the legal acquisition. Can we then suggest he was on a roof with an erection for his wife, fell off the roof, and accidentally inserted it into his yevamah? – That too does not stand: he may be liable for damages, such as pain and medical bills, but he does not create a yibum. Final conclusion: he had an erection for his wife, and then the brother's wife seized him and cohabited with him.

Incidentally, if a man intends to insert his member into a wall and accidentally inserts it in his yevamah, he has not acquired her as a wife since his intention was not for cohabitation; however, if he intended to insert it into an animal, and inserted it into his yevamah, he has acquired her, because an act with an animal is considered a form of cohabitation.

Art: The Sisters by George Baxter

Tuesday, November 25, 2014

Yevamot 52 – Get, Yibum, Chalitzah

What are the possible permutations of marriages and divorces and yibum and chalitzah? If one declared the intent to marry his deceased brother's wife but then changed his mind and gave her a Get (divorce document), the Get alone is not enough. The Torah law dictates either a yibum or a chalitzah in this case. Therefore,  he needs to also give her a chalitzah.

If one stated that he would marry the widow (this is called "maamar" and looks like an engagement) and then cohabited with her – this is the proper way of doing the mitzvah of yibum. Now, that's obvious, isn't it? You might think that since this procedure looks completely like marriage, people may think it is actually a traditional marriage and not a yibum. Therefore, we need to be told that this is the proper order and that people will understand. Note that in practice today, yibum is never done, but rather one performs the chalitzah.

Moreover, one who did not follow the laws of propriety was subject to lashes given by the court. For example, Rav used to order lashes to one who cohabited with his deceased brother's wife without first declaring marriage intent. He also prescribed lashes for one who betroths a woman by cohabitation. Even though cohabitation is the only form of engagement mentioned in the Torah, the Sages decreed additional, preferred forms: money (ring) or a document. Some say Rav only gave lashes in this last case because it is licentious behavior.

Art: The Marriage Contract by Jan Jozef, the Younger Horemans

Sunday, November 23, 2014

Yevamot 50 – Divorce, and then another divorce

If a deceased brother left two wives, and the remaining brother gives each one a Get (divorce document), then the second Get has no validity. Really, the Get has no place here; it should be either a yibum (marriage) or a chalitzah, which is akin to divorce. However, if he does give the first wife a Get, and the Get has no effect, then certainly the Get given to the second wife has no impact either, and he can marry the second wife's relatives (mother, sister, etc.)

If, on the other hand, a Get does have the same effect as chalitzah, then all bonds between the remaining brother and the second wife are already dissolved, and giving her a Get now means nothing, for he is giving a Get to a stranger. This is the opinion of Rabban Gamliel, which can be expressed as “There is no Get after a Get.”

The Sages, however, say that “There is Get after a Get,” meaning that Get weakens the bond but does not dissolve it completely. Therefore, the first wife still needs a chalitzah, even after getting a Get. Also, the second wife is still connected to the brother, and if he gives her a Get, it is valid to the extent that he cannot marry her relatives, and she cannot marry his.

Why is this a partial situation? – This decree is to avoid confusion. If the Get had no validity, people could reason thus: “Get effects separation and chalitzah effect separation. Just as we see that the Get here has no effect, so too chalitzah has no effect other than allowing the woman to marry anyone outside the family,” and the people may then do a yibum, which is prohibited after chalitzah. This follows the rule that there is only one chance to re-build the brother's house, but not two.

Art: Four Fisherwives by Winslow Homer

Yevamot 49 – How Manasseh killed Isaiah

Rabbi Akiva has a stringent opinion about a mamzer: any time the union is forbidden by a mere “don't do it” commandment, the child is already a mamzer. What is his logic? The Torah said, “A man shall not uncover the robe of his father,” and it was talking about a woman with whom his father was intimate out of wedlock (mere “don't do it” for the son), and yet next is the phrase about a mamzer.

However, Shimon Hatimni says that the transgression must be more severe, one that deserves death at the hands of Heaven, and this is the accepted opinion. Rabbi Yehoshua says that to produce a mamzer, the union must carry an even stronger prohibition that warrants death by court judgment.

There was an old scroll in Jerusalem which supported Rabbi Yehoshua. The scroll also told that Manasseh (an idolatrous king) killed the prophet Isaiah (who was his grandfather). Here is how it happened. First, Manasseh judged Isaiah as a false prophet. He said, "You claim to have seen God, but Moses, your teacher said that one cannot see God and live.”"Manasseh found two more such contradictions. Isaiah had explanations for all of them but decided not to say them. He judged that Manasseh would not accept them but act in cold blood and preferred to keep him ignorant and erring. Instead, Isaiah said the unique name of God and was absorbed into a cedar tree. His tzitzit was visible, however, and the servants of Manasseh began to chop the cedar. When they came to Isaiah's mouth, he died. Why did he deserve it? For the phrase that he said earlier, “I live among people of impure mouths.” One should not speak evil of the community of Israel.

Art: The Cedar Tree by George Frederick Watts

Friday, November 21, 2014

Yevamot 47 – Accepting converts

A man came to Rav Yehudah and said, “Even though everybody considers me Jewish, the truth is that I have converted myself, without the presence of a court of three.” Rav Yehudah asked, “Do you have children?” The man answered, “yes.” Rabbi Yehudah then said, “You are believed to disqualify yourself from being Jewish, but not to disqualify your children.”

Why is the man believed about himself? – Because anybody can create a prohibition with his own words in the situation where he stands to lose. But why is he not believed in his children? After all, a father is believed to tell us which of these sons is the firstborn!? Once we believe him that he is an idolater, he is no longer qualified to testify on Jewish matters. Others say that the man believes even about his children, precisely because we would believe him about the firstborn, but he is not believed about his grandchildren.

In general, if one comes and says that he wishes to convert and become Jewish, they tell him that he is joining a persecuted and pursued people, and if he still persists, they begin the process right away. They also say to him about a few of the mitzvot that he will have to keep and inform him of the seriousness of the prohibitions of Shabbat and the like. However, they also tell him about rewards in the World to Come. Finally, they inform him that he will have to give charity, and in Israel of the tithes that he will have to give. However, they don't overwhelm him with stringencies, as is learned from the behavior of Naomi toward Ruth, a righteous convert.

Art: Children by Boris Dmitrievich Grigoriev

Thursday, November 20, 2014

Yevamot 46 – Conversion to Judaism

What is required to become Jewish? All that is needed is for one to be circumcised. That was all that the Jews did in Egypt. The verse states, “For all the people that went forth from Egypt were circumcised” – this is the opinion of Rabbi Eliezer.

Rabbi Yehoshua says just the opposite: immersion in a mikvah is the only requirement since this is all that Jewish women did when they went out of Egypt. Obviously, they could not be circumcised, but how do we know they went to the mikvah? If not that, how were they brought into the Divine presence? But, since a woman can't be circumcised, how can we learn from that law for a man? Rabbi Yehoshua says that we indeed can.

However, the Sages maintain that both circumcision and immersion in a mikvah are required. What is their logic? – They agree both with Rabbi Yehoshua and with Rabbi Eliezer and thus come up with both requirements.

Rav Safra tells a story how he was visiting Rabbi Chiya, with yet another Sage, and a convert came to them. He was circumcised but not immersed in a mikveh. Rabbi Chiya told him to wait until tomorrow morning, for then they would administer an immersion for him. We see three things from here: that both circumcision and immersion are required, that this immersion cannot be done at night, and that three people need to be present. Can we also derive that they all need to be Sages? – No, this is just how it happened.

Art: Jews at the Wailing Wall by Gustave Bauernfeind

Tuesday, November 18, 2014

Yevamot 45 – A child from a mixed marriage

A child born from a Jewish woman and an idolater is a mamzer since the Torah said, “Do not intermarry with them,” implying that there is no legal significance in such marriage. As a result, the child is a mamzer. However, this is only one point of view.

The opposite point of view is that a mamzer is only born from a union of a married Jewish woman and another Jewish man. This disagreement persisted for centuries. Rav, who lived somewhat later, declared this child kosher. A man who was a Sage and whose father was an idolater said to Rav, “If such a child is kosher, give me your daughter in marriage.” Rav refused, but the man kept insisting. Finally, Rav set his gaze on him, and the man died. The law was established, and there was no counter-example to contest it.

Art: Woman With A Child In A Pantry by Pieter De Hooch

Monday, November 17, 2014

Yevamot 44 – Four brothers

If four brothers were married to four women, not related between themselves, and then all these brothers died, the oldest of the remaining brothers can – if he wishes – take all four as his wives in yibum.

This ruling, however, raises many questions. The Torah, in describing yibum, said, “And the Sages of his city will summon him and speak to him.” We understand that they give him appropriate advice. If he was old and she – young, they would tell him, “What do you have in common with such a young woman? Find somebody more appropriate for your age, and don't bring strife in your house.” They would say the same if the ages were reversed.

Since most people will have difficulty supporting four wives, how do they let him do it in this case? – We must answer that we are dealing with a situation where he has the means. But if so, what is the novelty? It is obvious! – The ruling gives him good advice: he should not take more than four wives to fulfill the marital obligation with each one at least once a month.

If one re-marries his ex-wife, who married someone else in the interim, the child is a mamzer. That is only the opinion of Rabbi Akiva, but the Sages say that a mamzer is born only through a liaison with a married woman or a similar severe transgression. All agree, however, about another situation. If one divorced his wife and married any of her forbidden relatives, the child is indeed a mamzer. Regarding in-law relationships, a divorcĂ©e is like a wife.

Art: Portrait Of A Young Woman In An Interior by Gustave Caillebotte

Sunday, November 16, 2014

Yevamot 41 – Three months

To avoid the problems with the uncertain parenthood mentioned before, the Sages decreed that a woman should wait three months after her husband's death before marrying again. The Torah said, "... to be a God for you and your offspring after you." We see that one of the requirements of the covenant is to clearly distinguish between the offspring of the first husband and the second one. The decree was extended to all cases of marriages and even betrothals, where childbearing should not be an issue – to prevent confusion.

Rabbi Yehudah disagrees: people won't be confused. So he allows, for example, a betrothed girl whose groom died to get married to another man right away. Similarly, a married woman can get engaged and wait three months for the chuppah. The exception is a betrothed girl in the province of Yehudah, where it was known that the grooms may have been too familiar with their brides.

Rabbi Yose goes even further: there is no need to distinguish between the offspring of the first husband and the second one. Everybody can get married right away, except a widow, who needs to wait thirty days because of mourning obligation.

Art: Portrait of a Bridegroom by Antonius Heusler

Wednesday, November 12, 2014

Yevamot 38 – Widow's inheritance

A woman whose husband died and who is awaiting a yibum or chalitzah from the husband's brother is in some measure this brother's wife. How do they share in money?

For example, if she gets an inheritance from her father's family, she has full control over it, and can sell it or give it away, and her late husband's brothers cannot get it back. However, what happens if she dies? Since it is uncertain whether she is a wife or not, half of the property that constitutes her inheritance goes to her father's family, but the other half goes to the husband's brothers – that is the opinion of Beit Shammai.

However, Beit Hillel uses a different method: in a case of doubt, the money remains in possession of that one who possesses it right now.

For example, her Ketubah - money that she gets upon divorce or the husband's death - remains in possession of those who own it - the husband's heirs.

Similarly, the property that she brought in and assessed at a certain sum, also called a dowry, remains in possession of the one who owns them. However, who possesses it? Our ruling does not say – and it is in itself a further disagreement: some say it is the husband's heirs, some – that it is the wife's heir, and yet others – that both sides possess it, so they would divide them. These and similar laws are discussed in more detail in the Talmud sections dealing with inheritance.


Art: Her Future Dowry by Antoine Jean Bail

Tuesday, November 11, 2014

Yevamot 37 – Yibum with a pregnant widow

If a woman's husband dies and leaves no son,  the late husband's brother can do a yibum (marriage) or a chalitzah (divorce) with the widow. However, the Sages asked to delay either for three months.
Here is why. Imagine that one marries the late brother's wife only two months after the brother dies. Imagine also that she gives birth seven months after this. Now we have two possibilities. It could be that this child is the full-term baby of the deceased. In this case, yibum was forbidden in the first place, they have transgressed and must bring a sacrifice, and he needs to divorce her because one cannot live with the wife of this brother who died but left a child.

On the other hand, if it is his child born after seven months of pregnancy (in the time of the Talmud, most babies were born after nine months, but a minority of healthy babies were born after seven months.) Now it transpires that he was correct in doing a yibum, and they can continue living together.

However, we cannot distinguish between the two cases: it may be a child of nine months, which means that the marriage is a transgression, or of seven months, in which case the wedding would be a mitzvah. Since they cannot resolve this uncertainty, he still must divorce her, and they bring the sacrifice prescribed for such doubts. But the child is not a mamzer in either case: either it is a child of the late brother or of the live one, and in both cases, it is legitimate.

Art: Mother and Child by Cornelis C. Zwaan

Monday, November 10, 2014

Yevamot 36 – Chalitzah with a pregnant widow

If one's brother dies and leaves a pregnant widow, chalitzah or yibum should not be required – since they apply only when a man dies childless. If one still goes ahead and performs a chalitzah, it is meaningless at this time.

However, if later she miscarries and it turns out that the brother did die childless after all – then now the chalitzah would be required. The question arises: does the previously performed chalitzah suffice? Rabbi Yochanan gives a general rule: a chalitzah of a pregnant woman is actually valid because now it transpires that she did need one. Likewise, a yibum performed with a pregnant woman also counts for the future. Why? Should Elijah the Prophet (who knows the future) come and reveal to us that she will miscarry, then the chalitzah would be valid – and therefore, it is valid even now. Alternatively - says Rabbi Yochanan - the proof is from the rule we had learned before, which states that "the marriage can continue." This means that the yibum with the pregnant woman is valid!

However, Resh Lakish disagrees on all counts and declares the chalitzah or yibum invalid. As far as Elijah and his knowledge of the future – Resh Lakish answers that right now, at least, we do not know the future and should judge accordingly, not using the logic of retroactively changing the meaning of current events based on the future outcomes. And as far as the rule of "the marriage can continue" – which seems to imply that the original yibum was valid – Resh Lakish will answer that it was not. Instead, a new yibum is required, and the marriage can continue.

Art: The Widow by Pavel Andreevich Fedotov

Sunday, November 9, 2014

Yevamot 35 – The widow who is pregnant

If one's brother dies childless, the remaining brother is bonded to the widow, so he must either do a yibum (which serves as marriage) or a chalitzah (akin to divorce). However, since the widow may be pregnant, the Sages established that neither yibum nor chalitzah can be done for ninety days after the brother dies.

If the brother violated this decree and performed chalitzah earlier, and then it was found out that the widow was pregnant – which means that the brother did not die childless -- then the chalitzah was meaningless. As a result, he is still allowed to marry the widow's relatives – because he was never connected to her. Likewise, she is permitted to marry his relatives: a valid chalitzah is considered a divorce, thus forbidding her to marry his relatives, but this chalitzah is considered nothing. She is not a divorcee and can even marry a Kohen.

However, if the brother hurried to do a yibum but found that his brother's wife was already pregnant with a child, then he was not allowed to do a yibum, because it does not apply in the presence of a child. Since he transgressed a prohibition of marrying his brother's wife in the situation when this is forbidden, they have to separate, and bring a sacrifice. However, if they later find out that the child was not viable, the marriage can continue.

Art: A Widow by James Jacques Joseph Tissot

Wednesday, November 5, 2014

Yevamot 32 – Wife's sister

Imagine that there are two brothers (Reuven and Shimon) married to two sisters. If Reuven dies, the laws of yibum would dictate that Shimon should now marry his wife. However, she is the sister of Shimon's own wife, and one cannot marry two sisters. Therefore, Reuven's widow needs neither yibum nor chalitzah and is free to remarry.

However, now Shimon's own wife dies, and he and his brother's widow are left alone. Nothing stands in the way of Shimon making yibum with his brother's widow – but this is not true. Since Reuven's widow was forbidden to Reuven at some point of time, this prohibition now stands forever, and he cannot marry her.

What if he married her, despite being told not to? – He is liable on two counts: she is his brother's wife, and she is his wife's sister. However, Rabbi Shimon disagrees and says that he is only liable because of the first prohibition, and some say – only because of the second. How can Rabbi Shimon hold two opinions at once? Actually, there is no contradiction. The second opinion applies when Shimon married his wife first (so that now the second sister is already forbidden to him as his wife's sister). Then Reuven married his wife (so that the second prohibition is not superimposed over the first one). The first opinion refers to the opposite chronological order.

Art: Sisters by Walter C. Strich Hutton

Tuesday, November 4, 2014

Yevamot 30 – What does the intent to marry accomplish?

We saw that the Sages instituted “an intent to marry” in the case of yibum, which looks like a regular engagement. Note, however, that the couple is already married in some sense: the mitzvah of yibum is accomplished by intercourse, and strictly speaking, no other formalities are required. Therefore, what does the declaration of this intent accomplish, an engagement or a complete marriage?

That was the question posed by Rabbah. Abaye asked – for what practical purpose are we asking? If it is for a Kohen to allow him to bury her if she dies – the answer is clear: even for a real engaged bride, a Kohen is not allowed to go to the cemetery, and certainly not for one with whom there is only an intent to marry. And if the question is, do we need a chuppah marriage ceremony, then the answer is clear also: he could do a yibum even against her will, so now that he made a declaration, does it make it any worse? Of course, he does not need a chuppah!

However, Rabbah answered that this is not so simple. Before the declaration, he indeed had the right to do yibum. But now that he made it, maybe he lost this right, got the right of a mere engagement instead, and does need a chuppah.

The question remains without a conclusive proof, and besides it concerns only the opinion of Beit Shammai, while the practical law always accords with the opposing opinion of Beit Hillel.

Art: The Bride by Edward Alfred Angelo Goodall

Sunday, November 2, 2014

Yevamot 29 – Statement of intent

Imagine two brothers married to two sisters, who have a third brother, a bachelor. One of the married brothers dies, and the bachelor now has to do a mitzvah of yibum or chalitzah with the widow.

Although the mitzvah of yibum simply means that the brother lives with the widow, the Sages established an additional "statement of intent to marry," which looks like a betrothal. The bachelor acts as proper and makes this statement. However, then the second brother dies. What is the situation of yibum now?

Beit Shammai sees no problem: he can keep his wife, to which he made a statement, and the other one – she is his wife's sister – does not need either a yibum or a chalitzah. Beit Shammai regards a statement as a valid betrothal, making them husband and wife. Usually, before they can live together, there must be a marriage ceremony, but because yibum already allows them, it is not required.

However, Beit Hillel says that the statement only looks like a betrothal, but being that it is not a real one, but only an action instituted by the Sages for propriety, she is not his legal wife. Therefore, he cannot keep her – because there is another sister with whom he is connected with the bond of yibum, nor can he marry that sister because of the same bond, plus his additional statement; in both cases, he is as if marrying his wife's sister, which is forbidden. Therefore, he must do a chalitzah with the first sister and give her a divorce document (Get) because of his prior statement. He then needs to do chalitzah with the other sister. He is thus left without any wife through no fault of his own.

Art: The Betrothal by Jose Juarez

Yevamot 26 – Four brothers and two sisters

If there were four brothers, two of whom were married to two sisters, and the married brothers died, how do the remaining brothers perform the mitzvah of yibum? The easiest solution seems to be that each brother marries (does yibum) one of the sisters. However, as we discussed before, there is a concept of "bond": each live brother is considered to be married to some degree to each of the two sisters, through the possibility of yibum with her. Thus, since he has this bond with one sister, he cannot marry the other one because this other sister is as if his wife's sister. The same reasoning applies to both sisters: this bond precludes him from marrying the other. Therefore, they should give a chalitzah to each of the sisters.

We have explained this rule by the existence of the bond. However, not everybody accepts this idea. Some say that such bond does not exist. How then would they explain the rule that the brother in this situation can only do chalitzah but not yibum? – He will say: consider the possibility that one of the brothers does yibum, but then the other brother dies. The remaining sister now cannot marry the live brother, because he has already married her sister. Nor is there another brother to marry her. Thus, she needs no yibum or chalitzah, and the mitzvah of yibum is dissolved and lost. One should not loose a mitzvah, and this is why the yibum is forbidden by the Sages. Instead, the brothers should do a chalitzah, so that the mitzvah is performed at least in some way, rather than disappear altogether.

Art: A family portrait of two brothers and two sisters by Wybrand Simonsz de Geest