Counterintuitive TB Yevamot 85

Yesterday we began the ninth chapter of our massekhet. The first Mishnah ends with the surprising conclusion. “Furthermore, if a man marries a woman forbidden to him as a secondary relative, she does not have the right to receive payment for her marriage contract if divorced or widowed, nor is she entitled to payment from her husband for the produce of her property that he used, nor is she entitled to provisions for her sustenance from his estate, nor does she get back her worn clothes or other objects she brought with her to her marriage. And the lineage of the offspring is unflawed, and the court forces him to divorce her.

“In contrast, a widow married to a High Priest, a divorcée or a yevama who performed ḥalitza [ḥalutza] married to a common priest, a mamzeret or a Gibeonite woman married to an Israelite of unflawed lineage, and an Israelite woman of unflawed lineage married to a Gibeonite or to a mamzer all have the right to receive payment for their marriage contract, although it was prohibited for them to marry.” (TB Yevamot 84b, Sefaria.org translation)

The prohibition of marrying a secondary relative (for example a man marrying his grandmother) is only forbidden by rabbinic decree. The widow marrying a High Priest and all the other examples above are forbidden by Torah law. Today’s daf TB Yevamot 85 provides two different answers to the obvious question. Why would the penalty for violating a rabbinic law be greater than the violation of a Torah law? This seems to be counter intuitive.

“Rabbi Shimon ben Elazar said: For what reason did they say that a widow married to a High Priest has a marriage contract? Because he is disqualified from the priesthood by his marriage to her, as a priest who marries a woman forbidden to him is barred from the Temple service until he divorces her and agrees not to remarry her, and she is rendered a ḥalala and disqualified from the priesthood by intercourse with him, and any place where he is disqualified and she is disqualified, they penalized him through the marriage contract. In other words, the Sages did not exempt him from payment of the marriage contract in that case. Since he is disqualified from the priesthood until he divorces her, the marriage will not last, and they did not force her to forfeit her marriage contract. And for what reason did they say that women forbidden as secondary relatives by rabbinic law do not have a marriage contract? Because he is fit for the priesthood and she is similarly fit, the couple therefore sees no need to divorce, and any place where he is fit and she is fit they penalized her by exempting him from payment of the marriage contract, in order to speed up the divorce.” (Sefaria.org translation)

Rabbi Shimon ben Elazar sees in which case does a person pay a higher price when entering a forbidden marriage. Recognizing that the person would pay a higher price by this marriage would discourage the marriage in the first place. A priest would not want to lose his role as a priest and all the benefits therein; consequently, he would think twice before marrying a woman forbidden to him. The rabbis did not feel the need to add further incentives by her losing her ketubah to prevent this marriage. Since there are no real penalties when a man marries a secondary relative, the rabbis added the incentive of the woman losing her ketubah to discourage such a marriage.

“Rabbi Yehuda HaNasi says a different reason: These cases, a widow married to a High Priest and a divorcée married to a common priest, are prohibited by Torah law, and Torah law does not require strengthening by means of additional enactments. But those secondary relatives are forbidden by rabbinic law, and rabbinic law does require strengthening. Alternatively, the Gemara presents a second explanation: In this case, when they are both disqualified, it is he who encourages her to live with him despite the deleterious effect the prohibition will have on her and her offspring. Therefore, they penalized him by making him pay the marriage contract. But in that case, when they both remain fit for the priesthood despite the prohibited nature of their marriage, it is she who encourages him, and they consequently penalized her.” (Sefaria.org translation)

Rebbe’s explanation is clear. When comes to rabbinic laws, sometimes people play fast and loose with the rules alike when it comes to a Torah law.