יבמות 79:2 — Soncino English Talmud

In the days of Rabbi there was a desire to permit the nethinim. Said Rabbi to them, 'We could very well surrender our portion; who could surrender the portion of the altar?' He is thus in disagreement with R. Hiyya b. Abba. For R. Hiyya b. Abba stated in the name of R. Johanan: The portion of the congregation is forbidden for ever, and the portion of the altar is forbidden only when the Sanctuary is in existence, but when the Sanctuary is not in existence it is permitted. MISHNAH. R. JOSHUA STATED: I HAVE HEARD THAT A SARIS SUBMITS TO HALIZAH AND THAT HALIZAH IS ARRANGED FOR HIS WIFE, AND ALSO THAT A SARIS DOES NOT SUBMIT TO HALIZAH AND THAT NO HALIZAH IS TO BE ARRANGED FOR HIS WIFE, AND I AM UNABLE TO EXPLAIN THIS. R. AKIBA SAID, I WILL EXPLAIN IT: A MAN-MADE SARIS SUBMITS TO HALIZAH AND HALIZAH IS ALSO ARRANGED FOR HIS WIFE, BECAUSE THERE WAS A TIME WHEN HE WAS IN A STATE OF FITNESS. A SARIS BY NATURE NEITHER SUBMITS TO HALIZAH NOR IS HALIZAH ARRANGED FOR HIS WIFE, SINCE THERE NEVER WAS A TIME WHEN HE WAS FIT. R. ELIEZER SAID: NOT SO, BUT A SARIS BY NATURE SUBMITS TO HALIZAH AND HALIZAH IS ALSO ARRANGED FOR HIS WIFE, BECAUSE HE MAY BE CURED. A MAN-MADE SARIS NEITHER SUBMITS TO HALIZAH NOR IS HALIZAH ARRANGED FOR HIS WIFE, SINCE HE CANNOT BE CURED. R. JOSHUA B. BATHYRA TESTIFIED CONCERNING BEN MEGOSATH, WHO WAS A MAN-MADE SARIS LIVING IN JERUSALEM. THAT HIS WIFE WAS ALLOWED TO BE MARRIED BY THE LEVIR, THUS CONFIRMING THE OPINION OF R. AKIBA. THE SARIS NEITHER SUBMITS TO HALIZAH NOR CONTRACTS THE LEVIRATE MARRIAGE, AND SO ALSO A WOMAN WHO IS INCAPABLE OF PROCREATION MUST NEITHER PERFORM HALIZAH NOR BE TAKEN IN LEVIRATE MARRIAGE. IF A SARIS SUBMITTED TO HALIZAH FROM HIS SISTER-IN-LAW, HE DOES NOT THEREBY CAUSE HER TO BE DISQUALIFIED. IF, HOWEVER, HE COHABITED WITH HER HE CAUSES HER TO BE DISQUALIFIED. SINCE HIS ACT IS SHEER PROSTITUTION. SIMILARLY, WHERE BROTHERS SUBMITTED TO HALIZAH FROM A WOMAN INCAPABLE OF PROCREATION, THEY DO NOT THEREBY CAUSE HER TO BE DISQUALIFIED. IF, HOWEVER, THEY COHABITED WITH HER, THEY CAUSE HER TO BE DISQUALIFIED. SINCE COHABITATION WITH HER IS AN ACT OF PROSTITUTION. GEMARA. Observe! R. Akiba was heard to state that 'Those who are subject to the penalty of negative precepts are on a par with those who are subject to the penalties of kareth'; but those who are subject to the penalty of kareth are not eligible for halizah or levirate marriage! — R. Ammi replied: 'What we are dealing with here is with a case, for instance, where his brother had married a proselyte; and R. Akiba is of the same opinion as R. Jose, who stated that an assembly of proselytes is not regarded as an assembly.' If so, he should also be permitted to contract levirate marriage! — The law is so indeed; only because R. Joshua used the expression 'SUBMITS TO HALIZAH' he [R. Akiba] also used the expression 'SUBMITS TO HALIZAH'. This may also be proved by inference; for it was stated, R. JOSHUA B. BATHYRA TESTIFIED CONCERNING BEN MEGOSATH, WHO WAS A MAN-MADE SARIS LIVING IN JERUSALEM, THAT HIS WIFE WAS ALLOWED TO BE MARRIED BY THE LEVIR, THUS CONFIRMING THE OPINION OF R. AKIBA. This proves it. Rabbah raised an objection: He who is wounded in the stones or has his privy member cut off, a man-made saris, and an old man, may either participate in halizah or contract levirate marriage. How? If these died and were survived by wives and brothers, and those brothers addressed a ma'amar to the wives, or gave them letters of divorce, or participated with them in halizah, their actions are legally valid; if they cohabited with them, the widows become their lawful wives. If the brothers died and they addressed a ma'amar to their wives, or gave them divorce, or participated with them in halizah, their actions are valid; and if they cohabited with them the widows become their lawful wives, but they may not retain them, because it is said in Scripture. He that is wounded in the stones or hath his privy member cut off shall not enter into the assembly of the Lord. This clearly proves that we are dealing with members of the assembly! — The fact is, said Rabbah, that this is a case where the widow became subject to him first and he was subsequently maimed. Said Abaye to him: Let the prohibition against the maimed man override the positive precept of the levirate marriage! Did we not learn [of a similar case]: R. Gamaliel said, If she made a declaration of refusal well and good; and if not, let [the elder sister] wait until the minor grows up and she will then be exempt as his wife's sister. Thus it follows that the prohibition against a wife's sister has the force of overriding [that of the levirate marriage]; here also, then, let the prohibition against the maimed man have the force of overriding it! — But, said R. Joseph. this Tanna represents the view of the Tanna of the school of R. Akiba, who maintains that [the issue] of a union which is subject to the penalty of negative precepts owing to consanguinity is regarded as a bastard, but [the issue] of a union that is merely subject to the penalty of negative precepts is not a bastard. The text, 'To raise up unto his brother a name' should be applicable to this case also, but he, surely, is incapable of raising it! — Raba replied: If so, there exists no woman who is eligible for the levirate marriage whose husband was not a saris by nature for a short time, at least, prior to his death. Against R. Eliezer, however, Raba's reply presents a [valid] objection! — There it is only a general state of debility that had set in. What are we to understand by A SARIS BY NATURE? — R. Isaac b. Joseph replied in the name of R. Johanan: Any man ^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ

^ᵃnote:To enter into the congregation.
^ᵇnote:Both the congregation and the altar have shares in them (cf. Josh. ibid.).
^ᶜnote:Rabbi, who forbade the portion of the altar in his time though the Sanctuary was no more in existence.
^ᵈnote:Until a properly constituted authority should allow it.
^ᵉnote:A tradition from his teachers.
^ᶠnote:V. Glos.
^ᵍnote:In what case of saris halizah is, and what case it is not applicable.
^ʰnote:[H] lit., a 'eunuch of man', one whose emasculation was the result of human action. (Cf. infra n. 12).
^ⁱnote:[H] lit., a 'eunuch of the sun', one who was a eunuch from the time he first saw the sun, i.e., a congenital eunuch.
^ʲnote:V. p. 538, n. 10.
^ᵏnote:To marry a priest.
^ˡnote:The woman being forbidden to him as 'his brother's wife'.
^ᵐnote:Cf. supra n. 3.
^ⁿnote:A man-made saris is one of these, since cohabitation with him is forbidden by a negative precept in Deut. XXIII, 2.
^ᵒnote:V. supra 49a.
^ᵖnote:How then could R. Akiba maintain in our Mishnah that A MAN-MADE SARIS SUBMITS TO HALIZAH.
^ᵠnote:The deceased brother of the saris.
^ʳnote:A proselyte, not being included in the term assembly (v. Deut. XXIII. 2) she is permitted to the saris. Hence he submits to her halizah.
^ˢnote:V. supra n. 1.
^ᵗnote:Why then was only halizah mentioned?
^ᵘnote:According to R. Joshua, who regards an assembly of proselytes as a congregation, marriage is in fact forbidden. Only halizah is permitted because in his opinion it is applicable in the case of those a union between whom is subject to the penalty of a negative precept.
^ᵛnote:That according to R. Akiba even the levirate marriage is permitted.
^ʷnote:Levirate marriage. V. supra n. 5.
^ˣnote:I.e., in what connection is this law applicable?
^ʸnote:Without issue.
^ᶻnote:Lit., 'what they did they have done'; after their ma'amar, a divorce is required; after their divorce, no marriage may take place; and their halizah is valid.
^ᵃᵃnote:Lit., 'they acquired'.
^ᵃᵇnote:The maimed mentioned or the old man.
^ᵃᶜnote:Brothers'.
^ᵃᵈnote:V. supra note 9.
^ᵃᵉnote:Those that are maimed. The old man is excluded. V. infra.
^ᵃᶠnote:Deut. XXIII, 2. V. Tosef. XI.
^ᵃᵍnote:In regarding the halizah and marriage with an impotent person as valid.
^ᵃʰnote:How then could it be suggested that R. Akiba speaks of women proselytes who are not included in the term 'assembly?'
^ᵃⁱnote:R. Akiba's statement in our Mishnah.
^ᵃʲnote:As his deceased brother's wife.
^ᵃᵏnote:Since the obligation arose while the man was still in a state of potency, halizah with him is both necessary and valid.
^ᵃˡnote:A minor who was given away in marriage by her mother or brothers after the death of her father and whose elder sister has now become subject to the levirate marriage of her husband.
^ᵃᵐnote:Mi'un (v. Glos.). No divorce is needed in the case of such a minor's marriage.
^ᵃⁿnote:Lit., 'she refused'. Her marriage becomes null and void retrospectively, and, as she has thus never been the legal wife of the levir, her sister (who is now no more the levir's wife's sister) may well contract with him the levirate marriage.
^ᵃᵒnote:Supra 18a, infra 109a.
^ᵃᵖnote:Who, in fact, deals with a case where the impotency had set in prior to the obligation and yet permits the halizah.
^ᵃᵠnote:Of the contracting parties.
^ᵃʳnote:This Tanna, like the Tanna of our Mishnah, thus draws a distinction between two classes of trespass that are subject to the penalty of negative precepts: (a) cases due to consanguinity and (b) other cases. While the former are subject to the restrictions of those who are liable to kareth, the latter are not. Maimed persons belong to the latter class and are consequently subject to the levirate law. Cf. supra 49a.
^ᵃˢnote:Deut. XXV, 7.
^ᵃᵗnote:The maimed levir.
^ᵃᵘnote:Owing to his impotency at the time of the halizah.
^ᵃᵛnote:Though at some earlier period he might have been; why then should he be subject to halizah?
^ᵃʷnote:If his former potency is not to be taken into consideration.
^ᵃˣnote:Approaching death deprives a person of his generating powers, and he may then be regarded virtually as a saris.
^ᵃʸnote:The widow of such a saris should consequently be exempt from halizah (v. our Mishnah). How, then, would a widow ever be subject to halizah? It must, therefore, be admitted that a person's former capacity for propagation is taken into consideration even though that capacity was subsequently lost.
^ᵃᶻnote:Who maintains that a manmade saris does not submit to halizah, though prior to his incapacitation he was capable of propagation.
^ᵇᵃnote:Which proves the contrary of R. Eliezer's statement (cf. supra n. 6).
^ᵇᵇnote:Where the power of propagation is lost on approaching death.
^ᵇᶜnote:Which precedes death.
^ᵇᵈnote:And this cannot at all be compared with the case of an actual saris whose incapacity is due to a definite defect in his generative organs.