On daf TB Yevamot 10 what has happened at the moment of halitza is a subject of disagreement between Reish Lakish and Rabbi Yoḥanan. Reish Lakish holds that once one brother performed halitza, the bond that tied the widow to all the brothers who potentially could do halitza is broken. This woman reverts back to the status of “the brother’s wife” which is a forbidden marriage with the punishment of karet.
“What is the rationale of Reish Lakish? The
verse states with regard to one who performs ḥalitza with his yevama: “Who
does not build up his brother’s house” (Deuteronomy 25:9), which teaches
that since he did not build his brother’s house by entering into
levirate marriage, opting instead for ḥalitza, he shall never build
it again. This statement is understood not only as a negative
description of events, but also as a prohibition against marrying this woman at
any point in the future.
“However, it
is the man who performed the act of ḥalitza who stands liable
to receive punishment for violating this prohibition of: Does not
build up, i.e., the prohibition against marrying his ḥalutza. For
him the prohibition involving karet has been replaced by the regular prohibition
of: Who does not build up his brother’s house. However, with regard to
his brothers, where they stood before, they stand now. In other
words, just as before the mitzva of levirate marriage applied to them this
woman was forbidden to them as a brother’s wife, once the obligation of
levirate marriage has been removed they remain bound by the same prohibition.
Consequently, she is forbidden to the brothers on pain of karet.
“And furthermore, only
with regard to her, the ḥalutza, does he stand liable for:
Does not build up, but as for the rival wife, who did not perform ḥalitza,
where all the brothers stood before, they stand now. Just
as before her rival wife performed ḥalitza she was forbidden on pain of karet,
the same applies after the ḥalitza, both for the man who performed ḥalitza
and his brothers. He” (Safaria.org translation)
According
to Rabbi Yoḥanan after the halitza ceremony is performed, the
next of kin brothers do not revert back to the original forbidden state because
each of the brothers and each of the cowives could have been the one who
fulfill the mitzvah of halitza. Consequently, if one of the brothers marries a
co-wife, he is only violating a prohibition (lav- לאו) which
does not carry the penalty of karet.
“And Rabbi Yoḥanan claims: Is there anything
of this kind in halakha? After all, at the outset, before the ḥalitza,
if this brother wanted he could perform ḥalitza, and if
that brother wanted he could perform ḥalitza, and if he
wanted he could perform ḥalitza with this woman and if he
wanted he could perform ḥalitza with that woman. All the
deceased brother’s wives were included in the levirate obligation of marriage
or ḥalitza, and therefore the prohibition proscribing a brother’s wife
was negated for all of them at that time. And now, after the ḥalitza,
they stand to incur karet for having relations with her?
How can the prohibition proscribing a brother’s wife return after it was
nullified by the death of the childless brother?
“Rather, he who performs ḥalitza performs the agency of
the other brothers, and therefore he also releases her from the
levirate bond of his brothers. Similarly, she who performs ḥalitza
performs the agency of the rival wife, as the ḥalitza of one wife
serves to release the other one as well. Consequently, it is as though all of
the brothers released all of the wives, and there is no longer any prohibition
that incurs karet.” (Sefaria.org
translation)
The ramifications of this disagreement continues on today’s daf TB
Yevamot 11.
“It was
stated that there is
a similar dispute between amora’im with regard to one who had
relations with his yevama and thereby performed the mitzva of
levirate marriage as required, and one of the other brothers had relations
with her rival wife. Rav Aḥa and Ravina disagree with regard to this
matter. One said: The second brother is liable to receive karet.
And the other one said that he is in violation of only a
positive mitzva (בַּעֲשֵׂה). The verse: “Who does not build up his
brother’s house” (Deuteronomy 25:9), is a positive mitzva, as it teaches that
one house may be built up, but not two houses, i.e., no more than one wife of a
deceased brother may be married by one of his brothers. Any mitzva formulated
as a positive injunction has the status of a positive mitzva, even if it is
violated by the performance of an action, in the manner of a prohibition.
“The Gemara explains: The one who
said that he is liable to receive karet holds in
accordance with the opinion of Reish Lakish, who maintains that
after the mitzva is performed with one yevama who required levirate
marriage, the prohibition of a brother’s wife is once again fully applicable to
her rival wife. And the one who said that he is in violation of
only a positive mitzva holds in accordance with the opinion of Rabbi
Yoḥanan.” (Sefaria.org translation)
There
are a couple ways to differentiate the categories of the commandments. One is
divide them into two categories, positive (aseh- עֲשֵׂה) commandments and negative commandments (lo
ta’aseh-
לֹא תָּעֲשֵׂה). Sefaria in its
explanation explains the strange use of the idea of a positive commandment when
somebody violates it. Normally we would consider this above act as committing a
negative commandment. Since this commandment is only articulated in the
positive, we learn what not to do by what we should do. Consequently, this
prohibition that is derived from a positive commandment (הלאו הבא מן העשה)
has the status of a positive commandment. The punishment is the practical
outcome if one violates this prohibition that is derived from a positive
commandment. He is not liable for the punishment of lashes (מַכּוֹת).
No comments:
Post a Comment