תלמוד על יבמות 4:1

MISHNAH: Fifteen [categories of] women¹Deut. 25:5 requires that the widow of any man who died without legitimate or illegitimate issue be married by the man’s brother. If, however, that brother is forbidden one of the deceased’s wives by the incest prohibition of Lev. 18 or the rules of Deut. 25:5–10, she may not be married by the brother to whom she is forbidden. free their co-wives²The House of Hillel hold that if one widow is forbidden, all co-widows are forbidden. This is not accepted by the House of Shammai, Mishnah 6. and the co-wives of their co-wives from ḥalîṣah and levirate forever³If one of three brothers had married the second brother’s daughter and another woman, died childless, the other wife was married by the third brother who already had another wife, if the third also dies childless both of his widows are forbidden because one of them is forbidden. This scenario can be extended to n polygamous brothers; n arbitrary.. They are the following: one’s daughter⁴This statement seems to be needed only for an illegitimate daughter, except the daughter from a gentile or a slave woman who are not legally his relatives (Rashi ad loc.). Legitimate children are covered by Lev. 18:17. However, the Yerushalmi (Note 135) does not make any distinction between legitimate and illegitimate daughters.
Sadducees (followed by Karaites and Christians) did forbid marriage with a niece since marriage with an aunt is a biblical prohibition and they held that the incest prohibitions of Lev. 18 are gender symmetric. Pharisaic opinion is that “one does not introduce punishable offence by argument;” what is written is forbidden, what is not written is not (biblically) forbidden., his daughter’s daughter and his son’s daughter⁵Lev. 18:10., his wife’s daughter and her daughter‘s daughter and her son’s daughter⁶Lev. 18:17: “The genitals of a women and her daughter (including mother-in-law and wife) you may not [both] uncover, her son’s daughter (wife’s granddaughter or wife as paternal grandmother’s daughter) or her daughter’s daughter (this forbids the wife’s maternal grandmother) you may not marry to uncover her genitals; they are relatives, it is tabu.”, his mother-in-law and his mother-in-law’s mother and his father-in-law’s mother, his sister⁷This is needed only for the maternal halfsister (Lev. 18:9) married to a paternal halfbrother. It will be established that the levirate applies only to paternal brothers; the first marriage of the halfsister was legitimate. and his maternat aunt⁸Lev. 18:13. and his wife’s sister⁹Lev. 18:18., his maternal halfbrother’s wife¹⁰Lev. 18:16. It is assumed that the halfbrother died or divorced his wife who then married a paternal halfbrother of the man in question to whom she was not related. The earlier marriage to the maternal halfbrother forbade her permanently to the levir, the brother-in-law on the husband’s side.
Since in Deut. 25, “brother” is assumed to mean “paternal brother”, it needs some discussion in the Halakhah why in Lev. 18 “brother” may mean “maternal or paternal brother” since the usual stance is that in legal texts one word can have only one meaning., the wife of his brother who did not live in his world¹¹Deut. 25:5 introduces the rules of the levirate with the statement “If brothers live together”. This means that a brother born after the death of another cannot marry the widow of the deceased, i. e., the childless widow does not have to wait until the newborn baby grows up to marry her but, if there is no other brother, she may immediately marry outside the family., and his daughter-in-law¹²This is obvious (Lev. 18:15) except for the case that the son had died and his widow married a brother of her father-in-law unrelated to her. The prohibition of 18:15 is permanent; the earlier marriage to the son forbade her permanently to the father-in-law..

⁶Mishnah 4:10. There, we have stated: “If a brother gave qiddushin to the sister of a woman waiting for the levir⁷After the death of the brother, when the sister-in-law’s sister was prohibited to him since the widow is a candidate for levirate with any one of the brothers., they said in the name of Rebbi Jehudah ben Bathyra: One says to him, wait until your brother has acted. If [one of the] brothers performed ḥalîṣah or married her, he may marry his wife⁸Since the candidacy obstacle to marriage was removed. The same holds if the widow dies.. If the sister-in-law died, he may marry his wife. If the levir died, he has to send away his wife by a bill of divorce and his brother’s widow by ḥalîṣah.⁹Only if he is the only remaining brother. Then he is forbidden to marry his betrothed and has to divorce her. The widow becomes the sister of a woman divorced by him and cannot be married.” It says only: If the sister-in-law died, his wife is permitted to him. But if his wife died, his sister-in-law is forbidden to him. Rebbi Joḥanan said, these are the words of Rebbi Eliezer¹⁰The source of the argument is Mishnah 13:6. In the tradition of the Babli, the author is R. Eleazar (ben Arakh, the Tanna). The Babli disagrees (41a) and holds that both opinions are compatible with the position of the Sages who in this case might agree with R. Eleazar that a woman whom a brother could not marry for one moment is permanently forbidden to him.. But the Sages say, if his sister-in-law died, his wife is permitted to him, if his wife died, his sister-in-law is permitted to him. Rebbi Joḥanan said¹¹In Chapter 1 (Note 71), this is a statement of R. Eleazar (the Amora) in the name of R. Abun. In the Babli, 27b, R. Joḥanan disagrees and holds that any sister-in-law who cannot be married in levirate at the moment of death of her husband can never be a party to levirate., the Sages hold that for anything induced by a cause, if the cause is removed the prohibition is removed. But for Rebbi Eliezer, if the cause is removed the prohibition remains.

Rebbi Yose ben Ḥanina asked before Rebbi Joḥanan: Here¹³Mishnah 4:10., you say, if his sister-in-law died, his wife is permitted to him, if his wife died, his sister-in-law is permitted to him, and here¹⁴Mishnah 3:1. If one of the brothers performs ḥalîṣah with the woman who became a widow later, the sister who first became a widow should be permitted to the other brother by the rule spelled out by R. Joḥanan; see below. you say so? He said to him, I do not know the reason for [the rule regarding] sisters¹⁵In the Babli, 27b, R. Joḥanan is quoted as saying that he does not know the author of Mishnah 3:1. This means he is unable to analyze the hidden premisses on which the ruling is based.. Rebbi Abba, Rebbi Ḥiyya, in the name of Rebbi Joḥanan: I do not know the reason for [the rule regarding] sisters who are sisters-in-law¹⁶He spelled out that his criticism refers to Mishnah 3:1, not 4:10.. Rebbi Hila, Rebbi Yasa, in the name of Rebbi Joḥanan: The prohibition of sisters who are sisters-in-law cannot be compared to the prohibition of sisters who are not sisters-in-law. Rebbi Jeremiah said, explain it that the house fell on both [brothers] at the same time¹⁷Cf. Note 1. In that case, we do not know which of the two brothers died first; there are no discernible first and second widows to apply the rule of Mishnah 4:10. A similar argument in the Babli, 28a.. Rebbi Yose asked, did Rebbi Joḥanan say, I do not know the reason for [the rule regarding] sisters who are sisters-in-law if the house fell on both [brothers] at the same time? Only if they died one after the other. They wanted to say, what was the problem of Rebbi Joḥanan? If the second one died, why should the first one not be permitted to him? But if the first one died, the second should be forbidden to him. Rebbi Yudan said, both cases are the same problem for him. And candidacy counts for nothing since if there are three brothers,two of them paternal but not maternal halfbrothers, and two maternal but not paternal halfbrothers. If the paternal halfbrother died first¹⁸Brother 2 is paternal halfbrother of brother 1 and maternal halfbrother of brother 3. There is no relationship between 1 and 3. If 1 dies childless, his widow becomes a candidate for levirate with 2. and the second brother had no time to perform ḥalîṣah or levirate before he died, and she became eligible for his maternal halfbrother, may he not take her¹⁹If candidacy had given her some status comparable a wife of 2, she would be forbidden to 3. Since this case is never mentioned, one has to conclude that for 3 she is the widow of an unrelated man. In the Babli, Nedarim 74a, this position is ascribed to R. Aqiba, but not accepted by the other Sages.? This shows that candidacy is nothing, [otherwise] she should be forbidden as the maternal halfbrother’s wife.