Yevamot

There,  if one is to follow the view of him who said that a levirate bond does exist,  a levirate bond exists;  and if one is to follow him who said  that it is forbidden to annul the precept of levirate marriage,  well, it is forbidden to annul the precept of levirate marriage. Here, however, it is possible to assume that every one will happen to get his own. IF BOTH ANTICIPATED [THE BETH DIN] AND MARRIED THEY ARE NOT TO BE PARTED FROM THEM etc. Shila recited: Even if both were priests.  What is the reason?  — Because a haluzah is only Rabbinically forbidden,  and in the case of a doubtful haluzah  the Rabbis enacted no preventive measures.  But is a haluzah only Rabbinically forbidden? Surely it was taught: From Put away  one might only infer the prohibition concerning a divorced woman; whence that of a haluzah? Hence it was explicitly stated, And a woman!  The prohibition is really Rabbinical, and the Scriptural text is a mere prop. MISHNAH. THE COMMANDMENT OF THE LEVIRATE MARRIAGE DEVOLVES UPON THE [SURVIVING ELDER BROTHER]. IF A YOUNGER BROTHER, HOWEVER, FORESTALLED HIM, HE IS ENTITLED TO ENJOY THE PRIVILEGE. GEMARA. Our Rabbis learned: And it shall be, that the firstborn  implies  that the commandment of the levirate marriage devolves upon the [surviving elder brother];  that she beareth  excludes a woman who is incapable of procreation, since she cannot bear children: shall succeed in the name of his brother,  in respect of inheritance.  You say, 'in respect of inheritance';  perhaps it does not [mean that]. but, 'in respect of the name':  [If the deceased, for Instance, was called] Joseph [the child] shall be called Joseph; If Johanan he shall be called Johanan! — Here it is stated, shall succeed in the name of his brother  and elsewhere it is stated, They shall be called after the name of their brethren in their inheritance,  as the 'name' that was mentioned there [has reference to] inheritance, so the 'name' which was mentioned here [has also reference] to inheritance. That his name be not blotted out  excludes a eunuch  whose name is blotted out. Said Raba: Although throughout the Torah no text  loses its ordinary meaning, here the gezerah shawah  has come and entirely deprived the text of its ordinary meaning. But apart from the gezerah shawah, would it have been thought that 'name' actually signifies 'a name'? To whom, then, does the All Merciful address the instruction!  If to the levir, the wording should have been. 'shall succeed in the name of thy brother'; if to the Beth din, the wording should have been, 'shall succeed in the name of his father's brother'!  — It is possible that the All Merciful thus addressed the Beth din: Tell the levir, 'He  shall succeed to the name of his  brother'; but the gezerah shawah has come and deprived the text entirely [of its ordinary meaning]. Now that it has been stated that Scripture speaks of the elder brother only, why not assume that the firstborn must perform the duty of the levirate marriage and that any ordinary brother may not contract a levirate marriage at all!  — If so, what need  was there for the All Merciful to have excluded the 'wife of his brother who was not his contemporary'? R. Aha objected: Might it not be suggested that the exclusion  had reference to a mother's firstborn son!  -You could not possibly have assumed that,  since the All Merciful has made levirate marriage dependent on inheritance, and the right of inheritance derives from the father and not from the mother.  But might It not be suggested that where there is a firstborn the commandment of the levirate marriage shall be observed;  where, however, there is no firstborn the commandment of the levirate marriage shall not be observed?  Scripture stated, And one of them died;  does not this include also the case where the firstborn died,  and so the All Merciful has said that the younger shall perform the duty of the levirate marriage? But perhaps  [the text speaks of a case] where the younger died, and the All Merciful says that the firstborn shall perform the duty of the levirate marriage? — Surely, the All Merciful has excluded the wife of his brother who was not his contemporary! May it be suggested that where there is no firstborn the younger brother, if he forestalled [the Beth din],  is entitled to the privilege,  but that where there is a firstborn the younger brother, even if he forestalled him, is not entitled to the privilege? — Scrip. stated, If brethren dwell together,  the dwelling of one brother was compared to that of the other.  May it be suggested that where there is a firstborn one turns to the eldest  but where there is no firstborn one does not turn to the eldest?  Why, then, did Abaye the Elder teach that the commandment to perform the duty of the levirate marriage is incumbent Upon the elder brother; if he refuses, the younger brother is approached;  if he also refuses,  the elder is approached again!  — [Scripture has designated him] as the firstborn;  as with the firstborn the cause is his birthright, so with the elder brother the cause is his Seniority. Might it be said that when the firstborn performs the duty of the levirate marriage he also takes the inheritance  but when an ordinary brother performs the duty of the levirate marriage, he  does not take the inheritance?  Scripture stated, Shall succeed in the name of his brother  and behold he has succeeded! But since the All Merciful called him the firstborn;