Is conversion for the purpose of marriage valid? TB Yevamot 24

Before commenting on today’s daf TB Yevamot 24, we need to know some background information. According to rabbinic understanding having a sexual relationship with your Canaanite maidservant is forbidden. She isn’t Jewish. When the man emancipate his Canaanite maidservant or slave, the Canaanite maidservant or slave has to convert to Judaism. The Mishnah provides the following case: “One suspected by others of engaging in sexual relations with a Canaanite maidservant and she was later set free, or one suspected of relations with a gentile woman and she subsequently converted, may not marry that woman, since this will strengthen the suspicions against him. But if he did marry her, they, the judges of the court, do not remove her from him, i.e., they do not require him to divorce her.” (Sefaria.org translation)

The Gemara understands that this conversion is a valid one even though she is converting only for the purpose of marriage. “The mishna teaches that one who is suspected of relations with a gentile woman who later converted may never marry her. This implies that she is, however, a convert, although it appears that she converted only in order that he might marry her.” (Sefaria.org translation) Tosefot ד"ה גִּיּוֹרֶת  agrees that she is Jewish because she is only prohibited to the one who suspected of relations, but permitted to all other Jewish males.

Rabbi Neḥemya disagrees and holds the position that the convert must have no ulterior motives. The person should join the Jewish people only because they want to join the Jewish people.

“The mishna teaches that one who is suspected of relations with a gentile woman who later converted may never marry her. This implies that she is, however, a convert, although it appears that she converted only in order that he might marry her. The Gemara raises a contradiction from a baraita: Both a man who converted for the sake of a woman and a woman who converted for the sake of a man, and similarly, one who converted for the sake of the king’s table, so that he could serve in a prestigious capacity, or for the sake of Solomon’s servants, who were also considered prestigious, in all of these cases they are not converts; this is the statement of Rabbi Neḥemya.

“As Rabbi Neḥemya would say: With regard to converts by lions, i.e., forced converts such as the Samaritans [Kutim] described in II Kings (17:24–25); and converts who convert based on their dreams; and converts of the time of Mordecai and Esther described in the verse, “And many from among the peoples of the land became Jews; for the fear of the Jews was fallen upon them” (Esther 8:17); all of these are not converts until they are converted at this present time.

“The Gemara clarifies the meaning of the words: Could it enter your mind to say only at this present time? Since he mentioned the converts of Mordecai and Esther, who were deceased before Rabbi Neḥemya made this statement, he therefore cannot possibly mean this phrase literally. Rather, say: Like at this present time, when the Jewish people are in exile and there is no material benefit to conversion.” (Sefaria.org translation)

Although we want the person to join the Jewish people for the sake of heaven, the person’s, who joins the Jewish people because a marriage, conversion is accepted as a valid conversion. Since he/she went through the entire process of conversion with circumcision and/or just immersion in the mikvah, we presume that certainly the convert accepted Judaism wholeheartedly. The Rambam rules that one does not invalidate their conversion unless they return to their idolatry ways.

Today the Israeli ultra-Orthodox rabbis in control of marriage take the most extreme right wing position concerning who is a righteous convert. Most of the time the real question is not who was a Jew when somebody converts, but who the Rabbi who oversaw the conversion was. If you want to read a humorous book which contains this very topic, I recommend Joel Chasnoff’s book The 188 Crybaby Brigade. By profession Joel is a comedian who grew up in Chicago and decides to join the Israeli Defense Force as a lone soldier.

Although most the book deals with his time in the Army fighting Hezbollah in Lebanon, the chapter Hard-Core Jews, part II (pages 236-241) tells of his meeting with the Israeli rabbinate to get a marriage license. His mother was converted by the rabbinical Council of Central Texas and they were confirmed that Rabbi Tuckerman was Orthodox. Joel grew up Jewish and went to day school. He was serving in the IDF. Despite all this, the Israeli Rabbi declared that he was not Jewish. To see how this episode ends you have to read his chapter Son of David and the Epilogue (pages 251-261).

Passover reminds us never to lose hope#parashathashavua#HaHodesh#devartorah

 Spring is the time of year when God reminds us that things are not always as they seem. Passover, our Spring holiday, is proof of the kosher for Pesach pudding.  Over the course of a few short weeks, what appears hopelessly dead comes to life. Bleak woodlands are transformed into colorful landscapes. Trees whose naked arms reached to heaven all winter, as if pleading to be clothed, suddenly are adorned with lacy green gowns. Flowers that faded and fell to the ground in surrender to the cold rise slowly from the earth in defiance of death.

In the Torah, we read about our ancestors’ seemingly hopeless situation in Egypt.  Pharaoh enslaved the Israelites and set taskmaster over them. They built the store cities of Pithon and Ramses.  But the more the Egyptians oppressed the Jewish people the more they increased and spread out.  Pharaoh even commanded that all the male children be put to death. Life was as bitter as the maror we eat during the seder.

When all seemed hopeless, God heard the cry and moaning of the Israelites, remembered His covenant with our forefathers, and resolved to redeem them out of the land of Egypt, out of the house of bondage. (Exodus chapter 2) And as we say: “The rest is history.”

With this Shabbat, Shabbat HaHodesh, we begin the month of Nisan with a blessing.  Seeing the first buds, we recite, “Blessed are You our God, King of the Universe, who has withheld nothing from his world, but has created in it beautiful creatures and tress for human beings to enjoy.

The faithful arrival of spring heralding Passover every year comforts us when we’re in a situation that seems hopeless. With God, there is no such thing. No matter how bleak the landscape of life may look, God can transform it into a glorious garden of color and fragrance.  

Shabbat Shalom,

Rabbi Greene

We have to distinguish between biblical law and rabbinic law. During biblical times a foreign wife moved into the Israelite husband’s clan and assimilated into it. Conversion for her was an impossibility. The woman could never became an Israelite, but the children produced by this marriage were Israelites. A change happened during the Talmudic period. Ethnicity and religion separated making conversion for the first time a possibility. For first time a foreigner can join the Jewish people. Today’s daf TB Yevamot 23 is a source of matrilineal descent. The mother confers the Jewish or Gentile identity to her child.

“Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: The verse states: “Neither shall you make marriages with them: Your daughter you shall not give unto his son, nor his daughter shall you take unto your son, for he will turn away your son from following Me” (Deuteronomy 7:3–4). This teaches that your son born from a Jewish woman is called your son, but your son born from a gentile woman is not called your son, but her son. The verse teaches that since the son of a gentile woman is her son alone, he is not considered related at all to his Jewish father.” (Sefaria.org translation)

The classic definition of who is a Jew is a person who is born to a Jewish mother or converts. The conversion is a two-step process. The convert studies Judaism for a period of time under the guidance of a rabbi. When successfully completing the course of study, the convert immerses into the mikvah And if he is a male, he also under goes circumcision or having already been circumcised he undergoes a symbolic ceremony called hatafat dam brit. A Jewish court of three certifies that both steps have been successfully completed according to Jewish law.

The Conservative movement has made this two-step process of conversion a standard. This means that there is no dissent and anybody who violates the standard can no longer be a member of the Rabbinical Assembly and enjoy all rights and privileges of membership in this body of Conservative rabbis.

In 1983 the Reform movement wrote a teshuvah legitimizing patrilineal descent. With caveats either the father or the mother can pass down a Jewish identity. In part their teshuva reads: “The resolution goes on to enumerate some of those public and formal acts which might serve to confirm what it terms the child’s “positive and exclusive Jewish identity.” Among these are religious study and participation in a ceremony of Bar or Bat Mitzvah.

“One might possibly assume that this young man qualifies as a Jew under the resolution, since he has attended religious school and observed his Bar Mitzvah in the synagogue. This assumption, however, is erroneous. The point of the Resolution on Patrilineal Descent, as it has been interpreted by this Committee and through the accumulated practice of Reform congregations, is that Jewish status is not automatically conferred upon the child of one Jewish and one non-Jewish parent. The child’s Jewishness is a “presumption” which must be established through a pattern of behavior which testifies to the desire of the parent(s) to raise the child exclusively as a Jew. Therefore, the “public and formal acts” of which the resolution speaks can confirm a child’s Jewishness only to the extent that they offer proof that such is indeed the intention of the parent(s).These actions must serve as “meaningful acts of identification” with the Jewish faith and people. As we have written:

“These acts of Jewish identification, though “public” and “formal,” are more than mere public formalities. To be “meaningful,” they must offer evidence that the child in fact identifies as a Jew and that the parents are willing and able to transmit a sense of Jewishness to their son or daughter. If they offer no such evidence, then they become meaningless, mere words and empty ceremony that tell us nothing of the depth of a child’s identification or of the parents’ capacity or sincerity in fulfilling their promise to raise the child as a Jew.” (https://www.ccarnet.org/responsa-topics/on-patrilineal-descent/fifth)

Was this change good for the Jews? In 2013 the Jewish People Policy Institute studied the impact of patrilineal descent. This is a synopsis of what they discovered:

“Patrilineal Descent in American Reform Judaism

5/06/2013

The American Jewish Reform movement’s 1983 Patrilineal Descent decision declaring that the children of Jewish fathers have the same Jewish status as the children of Jewish mothers affected all of American Judaism, because more American Jews call themselves Reform than any other wing of Judaism.

Many advocates, including the influential Rabbi Alexander Schindler, celebrated the decision as promoting “the full equality of men and women in religious life.” However, Sylvia Barack Fishman’s in-depth study of the sociological results of the Patrilineal Descent decision over the past 30 years reveals many unintended consequences.

Patrlineal Descent accelerates declining numbers of mothers in Jewish families who identify as Jews, increasing Patrilineal Jewish families with Jewish fathers who are among the least Jewishly connected Jews in America today. The study documents the differences between inmarried, Patrilineal, and Matrilineal Jewish families and offers policy suggestions based on that research.” (https://jppi.org.il/en/article/english-patrilineal-descent-in-american-reform-judaism)

The limitation of a kal vekhomer TB Yevamot 22

Daf TB Yevamot 22 analyzes the disagreement between the Rabbis and Rabbi Yosi ben Yehudah concerning the case when a man unwittingly was intimate with his sister who was also the daughter of his father’s wife. The rabbis maintain that this man must bring two khatats (חטאת) sin, sacrifices because he transgressed two prohibited liaisons, his sister and the daughter of his father’s wife. Based upon his interpretation of Leviticus 18:11, Rabbi Yosi ben Yehudah holds that the man needs only to bring one khatat. The Gemarra goes back and forth why and how each side understands their opponent's verses differently. What interested me was a general rule concerning the kal vekhomer (קַּל וָחֹֽמֶר), A conclusion drawn from a minor or lenient law, to a major or more strict one.

The daf sets the stage for this conclusion.

“And Rabbi Yosei, son of Rabbi Yehuda, says: The verse states: “She is your sister,” which comes to limit and emphasize that you hold him liable due to the fact that she is his sister but you do not hold him liable a second time due to the fact that she is also his father’s wife’s daughter.

“And what do the Rabbis do with this verse: “She is your sister”? They require it in order to hold him liable to receive punishment for having relations with his sister who is both the daughter of his father and the daughter of his mother, to say that the Sages do not derive an additional Torah prohibition by way of a logical derivation, i.e., an a fortiori inference. In other words, although it would seem that since he is liable to receive punishment for having relations with his father’s daughter and also for his mother’s daughter, this must be all the more true in a case where she is the daughter of both his father and his mother, yet nevertheless, there is no new prohibition here. Therefore, the matter was taught explicitly in the Torah, to teach that the Sages may not derive additional prohibitions by way of a fortiori inferences. (kal vekhomer)” (Sefaria.org translation)

A kal vekhomer can’t produce a brand new Torah prohibition. It can only create a permission or a prohibition within a specific existing halakha.

A fence protecting the Torah TB Yevamot 21

At the conclusion of the very first Mishna in Pirkei Avot the men of the Great Assembly taught “וַעֲשׂוּ סְיָג לַתּוֹרָה-make a fence for the Torah.” This fence is rabbinic enactments designed to safeguard Torah observance. The very first Mishna of the first chapter of Yevamot enumerates 15 different prohibited relationships. The punishment for violating this prohibition is karet. Daf TB Yevamot 21 enumerates 16 secondary relationships rabbinically prohibited            (שְׁנִיּוֹת-sheneeyot).

A baraita enumerates 8 forbidden relationships. “The Sages taught in a baraita: What are the secondary forbidden relationships that were prohibited? His mother’s mother, and his father’s mother, and his father’s wife, and his mother’s father’s wife, and the wife of his father’s maternal half brother, and the wife of his mother’s paternal half brother, and his son’s daughter-in-law, and his daughter’s daughter-in-law. A man is permitted to take his father-in-law’s former wife, provided she is not the mother of his wife, and his stepson’s wife, if the stepson died or divorced her. And he is prohibited from marrying the daughter of his stepson. And it is permitted for one’s stepson to marry the stepfather’s wife or daughter.” (Sefaria.org translation)

Rabbi Hiyya School adds another six. “One of the Sages of the school of Rabbi Ḥiyya taught: The third generation from one’s son and one’s daughter, i.e., one’s great-grandchildren, and the third generation from his wife’s son and his wife’s daughter, i.e., one’s wife’s great-grandchildren, are all forbidden as secondary forbidden relationships. So too, the fourth generation from his father-in-law and from his mother-in-law, i.e., his wife’s great-grandmothers, are prohibited as secondary forbidden relationships.” (Sefaria.org translation)

This sugiyah concludes by adding the two great aunts making a total of 16 secondary prohibited relationships

Rav Kahana teaches the most well-known source giving the rabbis their power to prohibit secondary relationships or making any other rabbinic enactments for that matter. The Gemara ultimately understands that this verse is a mere support an asmakhta be’alma-אַסְמַכְתָּא בְּעָלְמָא and not truly derived by the Torah.

“Rav Kahana said that the prohibition of secondary forbidden relationships is alluded to from here, in the verse stated at the conclusion of the verses discussing the halakhot of forbidden relationships: “Therefore shall you protect [ushmartem] My prized possession [mishmarti], that you do not any of these abominable customs” (Leviticus 18:30). This means: Establish a safeguard [mishmeret] for My prized possession.

“Abaye said to Rav Yosef: If the prohibition against secondary forbidden relationships is learned from here then it would be by Torah law, yet the prohibition against secondary forbidden relationships is by rabbinic law. He answered him: The requirement to add an additional safeguard itself is in fact by Torah law, and the Sages interpreted and defined where and when to apply this law. Abaye objected: But isn’t all of the Torah also interpreted by the Sages and yet has the force of Torah law? In that case, why are these laws considered to be rabbinic? Rather, the prohibition of secondary forbidden relationships was decreed by rabbinic law, and the verse is a mere support but does not indicate a Torah law.” (Sefaria.org translation)

A positive commandment doesn’t override this prohibition TB Yevamot 20

Although a brother’s wife is an ’ervah (ערוה), prohibited from marrying the husband’s brothers, the Torah permits an exemption when the husband dies without children. The widow has a levirate marriage with a brother in order to perpetuate her dead husband’s name. We learned that the positive commandment of yibum overrides the prohibition of marrying one’s brother’s wife. This principle that a positive commandment overrides a prohibition (אָתֵי עֲשֵׂה וְדָחֵי לֹא תַעֲשֶׂה) is learned from the juxtaposition of two verses 

(סְמוּכִים ). (See TB Yevamot 4a)

 The Torah prohibits the High Priest from marrying any woman was not a virgin.  Daf TB Yevamot 20 wonders why the above principle is not put into play in the case of the High Priest and a widow who was only betrothed to a his dead brother.  This widow is a virgin because the marriage was never consummated; consequently she is childless. Why don’t we say that the positive mitzvah of yibum overrides the negative prohibition of marrying the betrothed dead brother’s wife?

The Gemara provides three answers to our question and then rejects them before coming up with the final reason. The first answer is we have a special derasha that prohibits the positive commandment to override the prohibition in this case. “Rav Giddel said that Rav said in response: The verse states: “His yevama shall ascend to the gate to the Elders and say: My brother-in-law refused to establish a name for his brother in Israel, he did not wish to consummate the levirate marriage” (Deuteronomy 25:7). As there is no need for the verse to state: “His yevama,” since it is clear to whom the verse refers and no new information is added by this word, what is the meaning when the verse states: “His yevama”? It comes to teach that there is one yevama who ascends for ḥalitza but may not ascend for levirate marriage, and her brother-in-law is not given a choice. Who is this? This is a woman with whom it is prohibited for her yavam to enter into levirate marriage, as he would be liable for the violation of a prohibition, and the positive mitzva of levirate marriage does not override the prohibition.” (Sefaria.org translation) This answer is rejected as just not true based on the following discussion in the Gemara.

Gemara tries to manufacture a positive commandment that would override our case is the second attempted answer, but all these positive commandments were all too generic. Consequently, this attempt to answer our question was also rejected.

The third answer was a rabbinic decree (גְּזֵרָה דרבנן) that prohibited the High Priest from marrying his dead brother’s betrothed wife. This answer is rejected because this case was not common enough to warrant a rabbinic decree.

Finally the fourth answer was accepted as the reason why we don’t say that the positive commandment of yibum overrides the negative prohibition for the High Priest to marry his betrothed dead brother’s wife. Although the first intercourse is the mitzvah, all subsequent intimacies are forbidden. As a safeguard the rabbis prohibited even the first intercourse.

“Rather, Rava said that it is necessary to reject the previous suggestion and to offer a different reason: The first act of intercourse is prohibited by rabbinic decree due to the likelihood of a second act of intercourse. Although intercourse the first time with the yevama is the fulfillment of a positive mitzva, which does override the prohibition, once the mitzva is fulfilled with that act there is no longer any positive mitzva involved. Afterward, this yevama becomes prohibited because there is no longer a positive mitzva to override the prohibition. Therefore, due to the possibility that one might engage in intercourse a second time with this woman, the Sages decreed that even the first act is prohibited.

“The Gemara comments: This is also taught in a baraita: If one of those yevamin who may not marry their yevama due to a prohibition engaged in intercourse with her, he acquired her with the first act of intercourse; however, it is prohibited to retain her for a second act of intercourse.”

Tosefot ד"ה אַטּוּ בִּיאָה שְׁנִיָּה explains the difference between a regular levirate marriage and our case. When comes to a regular levirate marriage, the mitzvah knocks out the prohibition a brother’s wife altogether because the Torah commands yibum. This is not the case we been discussing. Although the first intercourse may be permitted; however, the other prohibition that the High Priest must marry only a single woman who is a virgin remains in place. Consequently, the positive commandment does not override prohibition.

One small step for women TB Yevamot 19

Even though we understand that the world of the Torah and the world of the Talmud are patriarchal, studying massekhet TB Yevamot at times trouble us moderns. I had a repugnant feeling when the Gemara permitting a man having intercourse with very young girls. “And the baraita continues: Who is considered a minor? It is a girl from the age of eleven years and one day until the age of twelve years and one day. If she was younger than this or older than this, she may go ahead and engage in relations in her usual manner. This is the statement of Rabbi Meir. Since it is assumed that a minor who is less than eleven years old cannot become pregnant, she is considered to be in no danger. And the Rabbis say: Both this one and that one, i.e., in all these cases, she may go ahead and engage in relations in her usual manner, and Heaven will have mercy upon her and prevent any mishap, since it is stated: “The Lord preserves the simple” (Psalms 116:2).” (TB Yevamot 12b, TB Sefaria.org translation) I like to think that this was a theoretical discussion, but I doubt it.

We learn on daf TB Yevamot 19 that the Torah accords no rights for the women when it comes to levirate marriage. Only the deceased’s brother can choose to either do yibum or halitza and she has no say in the matter. Nevertheless, the halakha took one small step recognizing that widow needs to consent to be intimate with her dead husband’s brother.

The Gemara first sets up the case. “The Gemara proceeds to discuss the baraita itself. The Master said: The second was about to perform levirate betrothal with his yevama, but did not manage to perform levirate betrothal with his yevama before his brother was born, and then the second brother died. The first woman goes out and is free to remarry without ḥalitza or levirate marriage due to the fact that she was the wife of a brother with whom the third brother did not coexist, and the second woman performs ḥalitza or enters into levirate marriage. The Gemara asks: What is the meaning of the phrase: Was about to, and what is the meaning of: Did not manage to perform levirate betrothal? The important issue is not his intention but his actions. If he did it, he did it; and if he did not do it, he did not do it.”

Now we see the argument between Rabbi Yehuda HaNasi and the sages whether women need to consent to the levirate marriage.

“Rather, the correct interpretation is: Was about to means that he was about to perform levirate betrothal with her consent. Did not manage means that he did not manage to perform it with her consent, but instead did it against her will. Consequently, it is understood that this baraita is not in accordance with the opinion of Rabbi Yehuda HaNasi, as it is taught in a baraita: With regard to one who performs levirate betrothal with his yevama without her consent, Rabbi Yehuda HaNasi says: He acquired her and the betrothal is fully valid, like a consensual levirate betrothal with his yevama; and the Rabbis say: He did not acquire her.

“The Gemara explains: What is the reason for Rabbi Yehuda HaNasi’s opinion? He learned this from the case of a yavam engaging in intercourse with a yevama. Just as even non-consensual intercourse with the yevama renders her his wife, as the matter does not require her consent, so too, betrothal of a yevama can be non-consensual. But the Rabbis learned from the halakhot of betrothal in general; just as betrothal in general requires consent by the woman, so too, betrothal of a yevama for purposes of levirate marriage requires consent.

“The Gemara explains: With regard to what principle do Rabbi Yehuda HaNasi and the Rabbis disagree? One Sage, Rabbi Yehuda HaNasi, holds that halakhic matters concerning yevamot must be inferred from matters concerning yevamot and not from other areas of halakha. And one Sage, the Rabbis, holds that halakhic matters concerning levirate betrothal must be inferred from matters concerning betrothal.” (Sefaria.org translation)

Even though nobody practices yibum today, I’m happy to report that the halakha is according to the sages. The widow needs to consent to the levirate marriage. (Rambam, Mishneh Torah, Sefer Nashim, Hilkhot Yibum, Chapter 2, Halakha 1: Shulkhan Arukh, Aven Ha’ezer, 166:3)

This is the second time the rabbis took the woman’s feelings into consideration. We learned previously: “And similarly, Rav Sheshet said that Rabbi Elazar said in the name of Rabbi Elazar ben Azarya: From where is it derived with regard to a yevama who came before a yavam afflicted with boils that one may not muzzle her, i.e., she cannot be forced to enter into levirate marriage, and he is compelled to release her by ḥalitza? As it is stated: “You shall not muzzle an ox while it treads out the corn” (Deuteronomy 25:4), and, juxtaposed to it, is the verse: “If brothers dwell together” (Deuteronomy 25:5), which begins the passage that deals with the halakhot of levirate marriage. This teaches that just as it is prohibited to muzzle the ox, so too, one may not muzzle and ignore the complaints of a yevama who does not wish to marry a yavam afflicted with boils.” (TB Yevamot 4a, Sefaria.org translation)

He never knew his brother TB Yevamot 17

With today’s daf TB Yevamot17 we begin the second chapter of our massekhet. The first Mishna of the first chapter enumerates 15 different ervot (ערוות) prohibited marriages that exempts her from yibum or halitza. One of them is a brother who wasn’t born at the same time his married brother died. Today’s daf describes how that could happen and how do we learn this halakha.

“MISHNA: Each of the women enumerated in the first chapter causes exemption from levirate marriage and ḥalitza for her rival wives. This is due to the close family relationship she has with her brother-in-law, making her forbidden to him. The single exception is the case explained in this mishna. What is the case of the wife of a brother with whom he did not coexist?  (אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ)For example: If there were two brothers, and one of them died childless, and subsequently a brother of theirs was born, after which the second brother, the elder, took his deceased brother’s wife in levirate marriage, and then died as well. Consequently, two women require levirate marriage: The widow of the first brother who had been taken in levirate marriage by the second brother, and the widow of the second brother, the first widow’s rival wife. The first widow, who had been the wife of the first brother to die, goes out without any obligation to be taken in levirate marriage by the youngest brother who was born later, since she is the wife of a brother with whom he did not coexist. The first deceased brother never lived at the same time as the newly born brother. The second widow, who had been married to the second brother, is exempt due to her rival wife.” (Sefria.org translation)

Let me paint the scenario to make this concept easier. Reuvan and Shimon are brothers. Reuvan married Leah and Shimon married Rachel. Reuvan died without children. Shimon took Leah in a levirate marriage and then another brother was born and his name is Levi. Shimon now has two wives, Leah and Rachel, when Levi was born.

Shimon died without children and now both Leah and Rachel come before Levi as the surviving brother. Leah isn’t a candidate for yibum because Levi wasn’t alive during Reuvan’s lifetime. This is the case of “the wife of a brother with whom he did not coexist.” Because Rachel is a tzarat ervah, she is exempt from yibum and halitza.

The Gemara explains the verse what kind of brother is exempt from observing the mitzvah of yibum. “The Gemara turns from a review of the language used in the mishna to a discussion of the halakhot of a wife of a brother with whom one did not coexist. Where is it written that the mitzva of levirate marriage does not apply in the case of the wife of a brother with whom he did not coexist? Rav Yehuda said that Rav said: The verse states “If brothers dwell together and one of them dies” (Deuteronomy 25:5), meaning that they had a common dwelling together in the world. This excludes the wife of a brother with whom he did not coexist. Furthermore, it is derived: “Together” means that they were united together in an inheritance; i.e., they are united in that they inherit together. In other words, since property is inherited by sons from their father, it can be inferred that the verse is speaking specifically of brothers from the same father. This excludes his maternal half brother, with whom he is not united by inheritance, since only brothers who share the same father inherit from each other.” (Sefaria.org translation) 

Don’t jump to conclusions TB Yevamot 16

After my father died I observed the traditional signs the mourning by not shaving for the first 30 days or so. Somebody complained to my president how slovenly and inappropriately I looked. My president had to tell him that I was in mourning. If he had only had approached me and asked me why I looked the way I did instead of complaining, he would not have jumped to those wrong conclusions.

Some things never change. Rumors swirl and people jump to conclusion without investigating the facts. Rabbi Dosa ben Harkinas was one of the first tannaim. He lived in the time before the Second Temple was destroyed and was considered an outstanding scholar. Because he lived in the same generation as Rabbi Yokhanon ben Zakkai and was involved in the discussions with Rabban Gamliel in Yavneh, we can surmise that he lived to be over 100 years old! I think we can assume that in the following story that he was blind due to old age. Apparently in the beginning of the story, the sages were upset because they heard that Rabbi Dosa ben Harkinas ruled that in a case of a tzarat ’erva according to the opinion of Beit Shammai and not Beit Hillel.

“In the time of Rabbi Dosa ben Harkinas the Sages permitted the rival wife of a daughter to the brothers. In other words, it became known that Rabbi Dosa ben Harkinas deemed permitted a daughter’s rival wife. And this matter was difficult in the eyes of the Rabbis because he was a great Sage and his decision in favor of Beit Shammai carried great weight. They could not approach him immediately, as he was very old and his eyes had dimmed so much that he was incapable of coming to the study hall.

“They said: And who will go and notify him that this matter requires clarification? Rabbi Yehoshua said to them: I will go. They asked: And who shall go after him? They selected Rabbi Elazar ben Azarya, who was one of the great Sages of the generation, notwithstanding his youth. They further inquired: And who after him? Rabbi Akiva. They went and stood at the entrance of Rabbi Dosa ben Harkinas’s house. His maidservant entered and said to him: Rabbi, the Sages of Israel have come to you. He said to her: Let them enter, and they entered.

“Rabbi Dosa ben Harkinas grabbed Rabbi Yehoshua, with whom he was already acquainted, and sat him on a bed of gold, as Rabbi Dosa was extremely wealthy. Rabbi Yehoshua said to him: Rabbi, call your other disciple so that he may sit. He asked him to call the other Sage as well, as it is a mark of respect when speaking to a great scholar to call every other Sage his disciple. He said to him: Who is it? Rabbi Yehoshua replied: Rabbi Elazar ben Azarya. Rabbi Dosa said: And does our colleague Azarya have a son? Due to his old age and prolonged absence from the study hall he had not heard of him.

“Rabbi Dosa ben Harkinas recited this verse about Rabbi Elazar ben Azarya: “I have been young, and now am old; yet I have not seen the righteous forsaken, nor his seed begging bread” (Psalms 37:25). He interpreted this verse to mean that the son of a Torah scholar also becomes a Torah scholar. He grabbed him and sat him on a bed of gold. Rabbi Yehoshua said to him: Rabbi, call your other disciple so that he may sit. He said to him: Who is that? He said to him: Akiva ben Yosef. Rabbi Dosa said to him: You are Akiva ben Yosef, whose name has spread from one end of the world to the other? Even Rabbi Dosa had heard of Rabbi Akiva’s reputation as a great man. Sit, my son, sit. May the likes of you multiply in Israel.

“Out of courtesy, they did not wish to broach the subject immediately. Rather, they began to encircle him with deliberations on different halakhot, until they came to the case of the rival wife of a daughter. They said to him: What is the halakha with regard to the rival wife of a daughter? He said that it is a matter of dispute between Beit Shammai and Beit Hillel. They asked him: According to whose statement is the halakha? He said to them: The halakha is in accordance with the opinion of Beit Hillel. They said to him: But didn’t they say in your name that the halakha is in accordance with the opinion of Beit Shammai?

“He said to them: Did you hear that Dosa ben Harkinas issued this ruling, or did you hear that it was stated by ben Harkinas? They said to him: On your life, Rabbi, we heard simply ben Harkinas. He said to them: If so, it is no wonder, as I have a younger brother who is the firstborn of the Satan, i.e., he is extremely sharp and as brazen as a demon (meaning he was stubborn as all get out-gg). And his name is Yonatan, and he is among the disciples of Shammai. It is he who issued this ruling.

“Rabbi Dosa ben Harkinas added: And beware that he not batter you with halakhot in this matter, as he has with him three hundred proofs with regard to the rival wife of a daughter that she is permitted. However, you need not worry about the issue itself, as I call as witnesses before me the heavens and the earth that on this very mortar, which was preserved in my house due to its historical importance, Haggai the prophet sat, and I have a tradition that he said three matters of halakha: First, that the rival wife of a daughter is forbidden…” (Sefaria.org translation)

Apparently Rabbi Dosa ben Harkinas’ younger brother Yonatan was the one who ruled according to Beit Shammai. Rabbi Dosa ben Harkinas held Beit Hillel’s opinion that a tzarat ’erva also falls into the category of a prohibited marriage; consequently, she is free to marry eligible man because no yibum or halitza is necessary. The moral of the story is one should never jump to conclusions because you may land where you don’t want to be.

Bonus. See how Rabbi Akiva responded to Yonaton's insult. Not only did he held his own in the debate, he answered him with such humility that Yonatan couldn't retort back with anything.

Theoretical debate or divergent practices TB Yevamot 15

We know that if a man dies childless his wife marries the deceased’s brother in order that his line will be perpetuated. This is a levirate marriage. If the man doesn’t want to marry his deceased’s brother’s wife, he has to perform the ceremony of halitza to dissolve their bonds. We also know that if that wife is one of the prohibited marriages then she is completely exempt from the levirate marriage. Now the co-wife of such a woman who was completely exempt from levirate marriage because of a prohibited marriage is called in Hebrew tzarat ’ervat, צרת ערווה. For example, if an uncle marries his brother’s daughter as well as another woman and dies without children, his surviving brother is forbidden to marry his daughter. The other wife is called a tzarat ’ervat. Beit Shammai and Beit Hillel disagree on the status of the tzarat ’ervat. Beit Shammai holds that a tzarat ’ervat must marry the deceased’s brother or perform the ceremony of halitza to dissolve their bonds. Beit Hillel holds that a tzarat ‘erva is considered an ’erva just like her co-wife and needs neither to marry the deceased’s brother nor perform the ceremony of halitza.

This difference of opinion has profound effects upon the unity of the Jewish people. According to Beit Hillel anybody following Beit Shammai’s opinion, the ensuing children will be considered mamzarim because they are the result of a prohibited marriage with the penalty of karet. These children can never ever enter the community of Israel. According to Beit Shammai anybody following Beit Hillel’s opinion, the children are b’nai lavim, a product of a negative commandment, but still Jewish.

Although the halakha follows Beit Hillel’s understanding. TB Yevamot 15 wants to know whether this was a theoretical debate between the two schools of thought or did Beit Shammai put their ruling into practice. Between dappim TB Yevamot 14 and 16, the Gemara brings 11 different cases as proofs that Beit Shammai put the rulings into practice. One proof shows that some things never change. People with power can ruin a person’s life who crosses them.

“Come and hear a different proof. They asked Rabbi Yehoshua: What is the halakha with regard to the rival wife of a daughter? He said to them: It is a matter of dispute between Beit Shammai and Beit Hillel. They continued to ask him: And in accordance with whose statement is the halakha? He said to them: Why are you inserting my head between two great mountains, i.e., between two great disputing opinions, between Beit Shammai and Beit Hillel? I fear lest these two mountains break my skull.

“However, I shall testify to you about two great families that were in Jerusalem, the Beit Tzevo’im family who came from the town of Ben Akhmai, and the Beit Kofai family from the town of Ben Mekoshesh: They were the descendants of rival wives who married others, in accordance with the opinion of Beit Hillel, and from them came High Priests who served on the altar. Accordingly, I can testify that this was the accepted halakhic practice throughout the generations.

“The Gemara infers from this statement: Granted, if you say that Beit Shammai acted in accordance with their opinions, this is why Rabbi Yehoshua said: I fear, since a conclusive halakhic ruling would mean that certain children are mamzerim, and the descendants of that family might take vengeance upon him. However, if you say that they did not act in accordance with their opinions, why did he say: I fear? The Gemara retorts: And even if Beit Shammai did act in accordance with their rulings, what is the reason that he said: I fear?

“Didn’t Rabbi Yehoshua say that in his opinion a mamzer is only someone born from a union of those liable to receive the court-imposed capital punishments, not from those liable to receive karet. If so, in the opinion of Rabbi Yehoshua, the children of rival wives who entered into levirate marriage would not be mamzerim at all, and therefore he had no reason to fear reprisals. The Gemara answers: Even if this is the case, nevertheless, he had something to fear, as, although the child of a rival wife would not be a mamzer, he would nevertheless be of flawed lineage and disqualified from the priesthood.” (Sefaria.org translation)

Even though some of the proofs that Beit Shammai follow their own ruling even though the halakha was according to Beit Hillel was deflected, the preponderance of examples prove that bet Shammai really did follow their own ruling.

 

 

The key is respect and communication TB Yevamot 13-14

Throughout rabbinic literature there is a tension between unifying the Jewish people by observing one halakha and recognizing the validity of opposing halakhic views. We have to remember that within rabbinic Judaism there was some leeway between dissenting opinions and that there were groups that were outside the pale of Judaism by rabbinic definition like the Samaritans and the Karaites.

This tension is explored on dappim TB Yevamot 13b-14.  The Gemara provides the underpinning derasha for the ideal of unity. “Reish Lakish said to Rabbi Yoḥanan: I should read here the verse: “You shall not cut yourselves [titgodedu]” (Deuteronomy 14:1), which is interpreted as meaning: Do not become numerous factions [agudot]. In other words, the Jewish people should be united, rather than divided into disparate groups that act in different ways.” (Sefaia.org translation) Rashi explains what’s wrong with factionalism. When different Jewish groups observe halakha differently, to the outsider it appears that there are two Torahs and not just one.

The Gemara notes that the disagreement concerning the co-wives of a forbidden relative Beit Shammai and Beit Hillel is one example of this tension. “Rabbi Yoḥanan raises a difficulty: But Beit Shammai permit rival wives to the brothers, and Beit Hillel prohibit this practice. This is an example of a clear prohibition, and yet two different traditions were followed.” (Sefaria.org translation) Beit Shammai would require these co-wives the either observe yibum, levirate marriage, or halitza, while Beit Hillel would free them from their link to the surviving brothers and allow them to marry any person. The Gemara comes to the conclusion that Beit Hillel and Beit Shammai put into practice their approach concerning yibum.

Both Abaye and Rava try to resolve this tension by limiting the scope of the derasha “Do not become numerous factions.”

“Abaye said: When we say that the prohibition: “You shall not cut yourselves” applies, we are referring to a case where two courts are located in one city, and these rule in accordance with the statement of Beit Shammai and those rule in accordance with the statement of Beit Hillel. However, with regard to two courts located in two different cities, we have no problem with it.

“Rava said to him: But the dispute between Beit Shammai and Beit Hillel is considered like a case of two courts in one city, as these two schools of thought were found everywhere, not in any specific place. Rather, Rava said: When we say that the prohibition: “You shall not cut yourselves” applies, we are referring to a case where there is a court in one city, a section of which rules in accordance with the statement of Beit Shammai and another section rules in accordance with the statement of Beit Hillel. However, with regard to two courts located in one city, we have no problem with it.” (Sefaria.org translation)

The continuation of the sugiya teaches us a very important lesson on how the Jewish people can be unified with diverse opinions.

“The Gemara continues to discuss the question of whether Beit Shammai followed their own rulings. Come and hear that which is taught in the mishna: Although Beit Hillel prohibit and Beit Shammai permit, and these disqualify the women and those deem them fit, Beit Shammai did not refrain from marrying women from Beit Hillel, nor did Beit Hillel refrain from marrying women from Beit Shammai. Granted, if you say that Beit Shammai did not act in accordance with their opinion, it is due to that reason that they did not have to refrain from marrying women from Beit Hillel. However, if you say that they did act in accordance with their opinion, why didn’t they refrain from marrying one another?

“The Gemara elaborates: Granted, Beit Shammai did not refrain from marrying into Beit Hillel, as even if Beit Shammai maintain in a certain case that a rival wife required levirate marriage or ḥalitza, if she went ahead and married another man their children are born to a union whose partners are liable by a regular prohibition: “The wife of the dead man shall not be married outside” (Deuteronomy 25:5). Since this transgression does not entail karet, the children of this relationship are not mamzerim.

“However, why did Beit Hillel not refrain from marrying into Beit Shammai? In the opinion of Beit Hillel the children of these rival wives who entered into levirate marriage are born of a union whose partners are liable to receive karet, as the prohibition of a brother’s wife was never nullified in this case, which means that the children are mamzerim. If so, how could Beit Hillel allow these marriages?

“And if you would say that Beit Hillel maintain that the child of a union whose partners are liable to receive karet is not a mamzer, as a mamzer is only one whose parents violated a prohibition that entails the death penalty, didn’t Rabbi Elazar say: Although Beit Shammai and Beit Hillel disagreed with regard to rival wives, they concede that a mamzer is only from a union whose prohibition is a prohibition of forbidden relations punishable by karet? Consequently, the children of rival wives are mamzerim according to Beit Hillel. Rather, isn’t it correct to conclude from here that Beit Shammai did not act in accordance with their own opinion?

“The Gemara rejects this conclusion: No; actually, Beit Shammai did act in accordance with their opinion. As for the problem with these marriages, the answer is that they would inform Beit Hillel and Beit Hillel would withdraw from the match. When those who acted in accordance with the opinion of Beit Hillel would come to marry women from those who followed the rulings of Beit Shammai, they would be notified that certain children were born of rival wives and that those people were considered mamzerim in the opinion of Beit Hillel, who therefore declared them forbidden in marriage. (Sefaria.org translation)

The key to diversity within unity is mutual respect and real communication.