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Babylonian Talmud: Tractate Yebamoth
that whosoever is subject to the obligation of levirate marriage is also subject to halizah, and whosoever is not subject to the obligation of the levirate marriage is not subject to halizah!1 Rather, said Raba, it is this that was meant:2 Where a levir married his yebamah who was found to be pregnant, her rival may not be married, because it is possible that the child would be viable, and marital contact with a pregnant woman is no proper marriage nor is the halizah of a pregnant woman proper halizah, while the child does not bring exemption until he is actually born.3
It was taught in agreement with the view of Raba: Where a levir married his yebamah who was found to be pregnant, her rival may not be married, because it is possible that the child would be viable, and neither marital contact nor halizah but only the child brings exemption; and the child brings exemption only after he is born.
The reason, then,4 is because it is possible that the child might be viable, but where the child is not viable her rival is exempt;5 does this imply an objection against Resh Lakish?6 — Resh Lakish can answer you [that the Baraitha] is thus to be interpreted:7 Where a levir married his yebamah who was found to be pregnant, her rival may not be married; since it is possible that the child may not be viable, and the halizah of a pregnant woman is no valid halizah nor is the marital contact with a pregnant woman a proper marriage; and were you to suggest that one should be guided by the majority of women, and the majority of women bear healthy children, [it could be retorted that] a child brings no exemption until he is actually born.8
Said R. Eleazar: Is it possible that there should exist [such a ruling as] that of Resh Lakish and that we should not have learnt it in a Mishnah? When he went out he carefully considered the matter and found one. For we learned: If people came to a woman whose husband and rival had gone to a country beyond the sea and told her, 'Your husband is dead',9 she may neither be married10 nor be taken in levirate marriage11 until she has ascertained whether her rival12 is pregnant.13 One can well understand why she may not be taken in levirate marriage, since it is possible that the child14 may be viable and [the levir] would thus15 infringe the Pentateuchal prohibition against [marrying] a brother's wife: but why should she not perform the halizah? It is possible to understand the reason why she must not perform the halizah within the nine months16 and also contract a marriage within nine months,16 since such [procedure would naturally be forbidden on account of the] doubt;17 but let her perform the halizah within the nine months16 and be married after the nine months!18 — But even in accordance with your view,19 let her perform the halizah and be married after the nine months!20 The fact, however, is that nothing may be inferred from this;21 for both Abaye b. Abin22 and R. Hinena b. Abin22 stated:23 It is possible that the child24 might be viable25 and you would then subject her to the necessity of an announcement26 in respect of the priesthood.27 — Well, let her be subjected!28 — It may happen that someone would be present at the halizah and not at the announcement,26 and would form the opinion that a haluzah was permitted to a priest.
Said Abaye to him: Was it stated, 'She shall neither perform halizah nor be taken in levirate marriage'? The statement, surely, was, 'She shall neither be married nor be taken in levirate marriage'29 without halizah; if halizah, however, had been performed30 she would indeed have been permitted!31
It was taught in agreement with Resh Lakish: Where a levir participated in the halizah with a pregnant woman who subsequently miscarried, she is required to perform halizah with the brothers.
Raba said: The law is in accordance with the views of Resh
If on the other hand, a viable child had been born, exemption took effect at his birth, and subsequent marriage would consequently be lawful. As the Mishnah, however, forbids halizah and marriage even after the nine months, unless definite information about the rival had been received, it must be assumed to represent the view of Resh Lakish who deems a halizah invalid wherever the child is not viable and the ceremony took place during pregnancy. Lakish in the following three rulings.32 One is the ruling just spoken of. Another is his ruling in connection with the following Mishnah:33 If a man34 distributed his property verbally35 and gave to one [son] more and to another less, or if he assigned to the firstborn a share equal to that of his brothers,36 his arrangements are valid.37 If, however, he said, 'As an inheritance',38 his instructions are disregarded.39 If he wrote40 either at the beginning or the end or the middle, 'as a gift',41 his instructions are valid.42
And [in connection with this] Resh Lakish stated: No possession is ever acquired,1 unless the testator had said, 'Let X and Y inherit this and that particular field which I have assigned to them as a gift, so that they may inherit them'.2 And the third3 is his ruling in connection with the following Mishnah:4 If a man assigned all his estate, in writing, to his son5 [to be his]6 after his7 death, the father may not sell it8 because it is assigned to the son, and the son may not sell it because it is in the possession of the father. If the father sold the estate, the sale is valid until his death.9 If the son sold it, the buyer has no claim whatsoever upon it until the father's death.10 And it was stated: If the son sold the estate11 during the lifetime of his father, and died while his father was still alive, R. Johanan said: The buyer does not acquire ownership;12 and Resh Lakish said: The buyer does acquire ownership.13 R. Johanan said that 'the buyer does not acquire ownership', because possession of usufruct is like possession of the capital;14 and Resh Lakish said that 'the buyer does acquire ownership', because possession of usufruct is not like possession of the capital.15
Said Raba: R. Meir and R. Eliezer taught the same law.18 R. Eliezer, in the ruling just mentioned, R. Meir [in the following Baraitha] wherein it was taught: A man shall not marry the pregnant, or nursing wife of another;19 and if he married, he must put her out and never remarry her; so R. Meir. But the Sages said: He shall let her go.20 and at the proper time21 he may marry her again.22
Abaye said to him:23 How do you arrive at such a conclusion which may possibly be wrong?24 R. Eliezer's ruling might extend to the present case25 only because the levir is encroaching26 upon the prohibition of 'brother's wife', which is Pentateuchal,27 but there,28 where the prohibition is only Rabbinical,29 he may hold the same view as the Rabbis. Alternatively, it is possible that R. Meir's ruling extends only to that case because the prohibition is Rabbinical,29 and the Sages have given more force to their provisions than to those which are Pentateuchal,30 but not to the case here,31 where the prohibition is Pentateuchal,26 and people as a rule keep away from it.32
Raba said: Even according to the ruling of the Rabbis33 he must let her go from him by means of a letter of divorce.34 Said Mar Zutra: This may also be deduced, since the expression used was 'he shall put her out'35 and not 'he shall let her part'.36 This proves it.
R. Ashi said to R. Hoshaia son of R. Idi: 'Elsewhere it was taught.37 "R. Simeon b. Gamaliel said: Any human child38 that survived for thirty days cannot be regarded as a miscarriage".39 Had he not lived so long,40 however, he would have been a doubtful case.41 But it was also stated: Where he42 died within thirty days43 and she44 was subsequently45 betrothed,46 Rabina said in the name of Raba that if she44 was the wife of an Israelite47 she must perform the halizah48 and if she was the wife of a priest49 she must not perform the halizah.50 R. Mesharsheya51 said in the name of Raba: The one as well as the other must perform the halizah. Said Rabina to R. Mesharsheya:51
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