דף 52

The Gemara is puzzled: Is this case upon which the mishna elaborates the case of a bill of divorce after a bill of divorce that is mentioned first in the mishna? The mishna first is referring to a bill of divorce after a bill of divorce, but when it comes to the specifics, it mentions a bill of divorce after levirate betrothal. Rav Yehuda said: This is what the tanna is saying: With regard to a bill of divorce after a bill of divorce, and levirate betrothal after levirate betrothal, it is as we said and these cases were explained in the baraita, but with regard to one yavam and one yevama, how is their complex bond released? He then proceeds to delineate: If he performed levirate betrothal with his yevama and gave her a bill of divorce, she requires ḥalitza from him.

§ The mishna teaches: If the yavam performed levirate betrothal and engaged in intercourse, this is done in accordance with its mitzva. The Gemara suggests: Let us say that this mishna supports the statement of Rav Huna. As Rav Huna said: The mitzva of a yevama is properly performed when the yavam betroths the yevama and only afterward engages in intercourse. This statement indicates that the levirate betrothal is a necessary component of the mitzva, and the mishna seems to imply the same. The Gemara refutes this claim: This is not necessarily the case, as you can read the mishna as stating that this also is in accordance with its mitzva. If he performed levirate betrothal and then engaged in intercourse, this too is a proper manner to proceed, but we do not have to interpret the mishna as indicating that this is the only way to fulfill the mitzva.

The Gemara asks: Isn’t this obvious? If one can fulfill the mitzva without performing levirate betrothal, why would one think that levirate betrothal is detrimental? The Gemara answers: It was indeed necessary for the mishna to teach us this, for it might enter your mind to say that since the Master said above (29b): One who performs levirate betrothal with his yevama causes the levirate bond to dissipate from himself, and a standard bond of betrothal and marriage takes effect on him, you might say that he no longer performs a mitzva when he carries out levirate marriage, as the levirate bond is no longer in place. The tanna therefore teaches us that we consider the levirate betrothal and the subsequent intercourse as part of the same process, which constitutes a mitzva.

The Gemara continues: With regard to the matter itself, Rav Huna said: The mitzva of levirate marriage is properly performed when the yavam betroths the yevama and afterward engages in intercourse, and if he engaged in intercourse and later performed levirate betrothal, he has acquired the yevama. The Gemara is puzzled: If he engaged in intercourse and then performed levirate betrothal it is obvious that he has acquired her, as he has already acquired her by intercourse. The levirate betrothal does not affect the issue one way or another. Rather, say as follows: If he engaged in intercourse without prior levirate betrothal, even in that case he has acquired her.

The Gemara challenges this: But isn’t it taught in a baraita that a yavam who has intercourse without levirate betrothal is flogged? The Gemara answers: The lashes are not because he transgressed by not performing levirate betrothal, but rather they are lashes for rebelliousness given for transgressing a rabbinic law, namely for acting in an immodest manner.

The Gemara cites other instances where the Sages administered lashes for immodest behavior. As Rav would flog one who betroths a woman by intercourse, despite the fact that betrothal is effective by this method, because he acted in a promiscuous manner. And he would likewise flog one who betroths a woman in the marketplace, rather than at home, as this too is loose behavior, and he would also administer lashes to one who betroths a woman without a prior marriage agreement [shiddukhei], as this too is an act of permissiveness.

And he would further lash one who nullifies a bill of divorce he had earlier sent by declaring in the presence of witnesses that the bill of divorce is nullified. This action is effective, but by doing so he transgresses the rabbinic ordinance of the Sages that bans such an action as it might lead his wife to unlawfully wed another. And he would also flog one who delivers a declaration preemptively invalidating a bill of divorce, by informing three people before giving a bill of divorce that he is not doing so of his own free will and he wants to cancel it ahead of time. Here too he will mislead his wife, who will assume it is a valid bill of divorce.

And he would lash one who behaves irreverently toward a messenger of the Sages, even if the messenger is not a scholar, as he thereby shows disrespect to the Sages themselves. And he would administer lashes to one who remained under an excommunication of the Sages for thirty days and did not go to the court and petition for the removal of his excommunication after correcting the sin that led to the excommunication in the first place. This behavior demonstrates that he does not care about the excommunication, and is therefore deserving of lashes.

And he would also lash a son-in-law who lives in his father-in-law’s house, as this is likely to lead to temptation between the younger couple and older couple who share the same house. The Gemara asks: With regard to one who lives in his father-in-law’s house, yes, he would lash him, but with regard to one who only passed through his father-in-law’s house at regular intervals, no, he would not lash him? But an incident occurred involving a certain man who passed by the entrance to his father-in-law’s house and Rav Sheshet lashed him. The Gemara explains: There was a special set of circumstances in that case, as that man was suspected with regard to his mother-in-law, and therefore he was lashed merely for passing near her house, as he thereby gave credence to the rumors.

The Sages of Neharde’a would say: In all these cases Rav would not flog, apart from the case of one who betrothed by intercourse and without a prior marriage agreement. And there are those who say he would flog a man who betrothed by intercourse even if he did so with a prior marriage agreement, due to the immorality involved, as he must invite witnesses to observe the act.

§ The Sages taught: How is levirate betrothal performed? He gives her money or the equivalent value of money and declares: You are hereby betrothed to me. The Gemara asks: And with a document, how does he betroth her? The Gemara is puzzled by this question: With a document, how does he betroth her? It is as we have said by the halakhot of a regular document of betrothal: If he wrote to her on paper or on earthenware, even though it is not worth a peruta, the words: You are hereby betrothed to me, it is effective. As a document is not effective as a means of betrothal due to its monetary value but rather due to the words it contains, there is no requirement that it be of a minimum value. However, because the halakhot of betrothal by a document were already taught, the Gemara is puzzled as to the nature of this question. Abaye said that this is what the baraita is saying: With regard to the document of a marriage contract for levirate marriage, how is it written? Abaye understands that the question did not refer to the document of betrothal but rather to the marriage contract of a levirate marriage.

The Gemara explains that he writes to her: I, so-and-so, son of so-and-so, have accepted so-and-so, my yevama upon me, to feed and maintain her in a fitting manner, provided that her marriage contract will still be payable from the property of her first husband and not from the property of the yavam. The Gemara adds: But if the first husband does not have property, the Sages instituted for her that she should receive her marriage contract from the second husband, i.e., the yavam, for the same reason that they instituted the marriage contract in the first place: So that she will not be demeaned in his eyes such that he will easily divorce her. If he will suffer no financial penalty, he is likely to divorce over the smallest argument.

§ Abaye inquired of Rabba: If a yavam gave his yevama a bill of divorce, and said the following formula: You are hereby divorced from me but you are not permitted to any other man, what is the status of such a bill of divorce? Is the bill of divorce of a yevama a bill of divorce based on rabbinic law and therefore subject to the halakhot of a regular bill of divorce; and consequently, a bill of divorce that is effective for a married woman is also effective for a yevama, and a bill of divorce that is not effective for a married woman is not effective for a yevama? Since this type of a divorce is invalid in the case of a married woman, it is similarly ineffective in the case of a yevama. Or perhaps the Sages were concerned that perhaps people will come to confuse this bill of divorce with an unqualified bill of divorce given by a yavam and they therefore decreed that it should affect the levirate bond, preventing the yavam from marrying the yevama.

Rabba said to him: We are concerned that perhaps they will come to confuse this bill of divorce with a regular bill of divorce, and it therefore disqualifies a yevama. Rabba bar Ḥanan strongly objects to this: However, if that is so, that we are stringent with the bill of divorce of a yevama out of concern that people might confuse the two types of bills of divorce, if he gives her a mere piece of paper, which does not mention divorce, so too will it disqualify her? He said to him: There it is different, as a mere piece of paper has no effect on any other woman, for it does not disqualify her for marrying into the priesthood. If a husband gives his wife a piece of paper that contains nothing about divorce, even if he says: This is a bill of divorce, his action is of no consequence, not even to forbid her to a priest. Here, however, a bill of divorce of this kind at least disqualifies a woman from marrying into the priesthood.

As it is taught in a baraita: “They shall not take a woman that is a harlot, or profaned; and a woman divorced from her husband they shall not take, as he is holy to his God” (Leviticus 21:7). This verse lists the women whom a priest is prohibited from marrying. From this verse it can be inferred: Even if she was only divorced from her husband who said when giving her a bill of divorce: You are divorced from me, but did not permit her to other men, even such a woman they may not take in marriage. Although a bill of divorce of this kind does not permit the woman to others, it does suffice to prohibit her from marrying a priest. And this is what is referred to as the trace of a bill of divorce, which disqualifies a woman from marrying into the priesthood. Since this bill of divorce is valid to a certain extent, it also disqualifies a yevama.

Rami bar Ḥama said: They said that if one said to a scribe [lavlar]: Write a bill of divorce for my betrothed now, such that when I marry her I will divorce her with the bill of divorce, if he indeed gave her this bill of divorce after their marriage it is a valid bill of divorce. Why? Because it is already in his power to divorce her while she is betrothed to him, and therefore the bill of divorce written during their betrothal is valid.