Today’s sugya continues to discuss the topic disputed in yesterday’s sugya—whether kiddushin that cannot be followed by intercourse are valid kiddushin.
To recall—Abaye holds that these kiddushin are valid, whereas Rava holds that they are not.
Abaye here solves the entire mishnah such that according to both clauses, kiddushin that cannot be followed by intercourse are valid kiddushin.
Clause 1: If he betroths two women simultaneously that cannot be betrothed consecutively, neither are betrothed. This follows Rabbah’s rule.
Deduction, part 1: If he betroths only one of these women, both are doubtfully betrothed. The kiddushin are essentially valid even though they cannot be followed by intercourse.
Deduction, part 2: If he explicitly says that he is betrothing only the one who is allowed to have sex with him, neither is betrothed. Since he does not know which one he is betrothing, neither of them can have sex with him.
Clause 2: This is exactly what the husband said. The sisters are not married not because “kiddushin that cannot be followed by intercourse are not valid” but because he explicitly stated that he was betrothing only those eligible for intercourse. Thus Abaye has resolved this clause with his opinion.
Rava resolves it so the mishnah would not imply that kiddushin that cannot be followed by intercourse are kiddushin.
Clause 1: A man says to two women “one of you is betrothed to me.” Note that this is not the precise language in the mishnah, but it is like the case directly mentioned in the mishnah. Rava has now resolved the mishnah with his opinion. Kiddushin that cannot be followed by intercourse, like marrying one of two sisters without knowing which he married, are not valid kiddushin. Neither woman needs a get.
Clause 2: This clause essentially describes the same scenario is the first clause. He said “one of the two sisters.” Since he cannot tell which sister he married, neither are betrothed.
The Talmud continues to discuss betrothal that cannot be followed by intercourse.
If one betroths one of his daughters but does not remember which one (wife is not going to be happy about this situation!), we are not concerned that he betrothed one of the adult daughers, because he cannot marry off his adult daughters. But we are concerned about the minors. Any one of them might be the one betrothed. However, this is a case of kiddushin that cannot be followed by intercourse. The man cannot have intercourse with any of the minor sisters lest she is his wife’s sister (meaning he actually married the other one).
Rava says the mishnah refers to a case where there is only one of each kind of daughter. In this case, the man who betrothed the minor daughter could have intercourse with her (once they get married).
The Talmud raises a difficulty—how can we say there was only one adult daughter when the mishnah uses the plural?
The answer is that the mishnah refers to laws concerning adult daughters in general, not this specific case. The plural is a category not a detail of the case.
But now the mishnah is overly simple—clearly the father meant to betroth the younger daughter, the only daughter he has the power to betroth?
To resolve this, the Talmud says that the actual case is where the adult daughter appointed the father to betroth her. In this case, the father does have the power to betroth her. Nevertheless, we assume he betrothed the minor daughter because he has the benefit there of receiving the kiddushin money.
Even if the adult daughter told the father he could keep the kiddushin money, we still assume he married off the younger daughter because he has a mitzvah to marry her off. There is no mitzvah to marry off the older daughter.
The Talmud continues to raise difficulties against Rava who said that “kiddushin that cannot be followed by intercourse” are not kiddushin.
Again, we encounter a case where a man does not remember which of his daughters he betrothed. R. Meir says we must consider three of the four girls doubtfully betrothed. Only the youngest girl of the younger set is not betrothed. But the husband cannot have intercourse with any of the doubtfully betrothed girls since any one of them may be the sister of his betrothed wife. This seems again to indicate that kiddushin that cannot be followed by intercourse are kiddushin.
In the mishnah, the father at one point knew which daughter he was betrothing. At the point of betrothal, the kiddushin could have been followed by intercourse. Later, he and the husband became mixed up, and this is why three of the girls are prohibited. In other words, the kiddushin were done properly, but the identity of the betrothed girl was subsequently lost.
R. Meir’s opinion counters the opinion of R. Yosi who says that when the father makes this statement, he is referring only to his oldest daughter, and thus she is the only one betrothed. R. Meir teaches us that if the father and husband cannot remember which girl was betrothed, three of them, anyone who could be called “older” must be considered doubtfully betrothed.
This is essentially the same difficulty and resolution raised above. The mishnah quoted here is Yevamot 2:6.
The reason this mishnah is taught is for the last clause. Since this is a bit complicated, I am quoting my full commentary from Mishnah Yomit:
If he dies, both sisters become liable for yibbum or halitzah to his brothers. If he has one brother, that brother cannot have yibbum with either because it is forbidden to have relations with the sister of a woman with whom you are liable to have yibbum (z’kukah). In other words, if he were to have yibbum with one of them, it could be that the other was the one who was really betrothed. Therefore, he must perform halitzah for both.
If there are two brothers, the first brother performs halitzah for one of the women and then the second brother can have yibbum with the other sister. The first brother should do halitzah because if he were to have yibbum he might be having relations with the sister who was not betrothed, and therefore he is having relations with the sister of his z’kukah (as in the above situation). However, after the first brother has halitzah with one of the sisters, there can be no problem for the second brother to have yibbum with the second sister. If she is the one who was betrothed to the dead brother, then he has yibbum with her, which is perfectly okay. If the other woman was the one betrothed, she has already had halitzah, and her ties to the brother are severed. Therefore, this woman is not the sister of his z’kukah.
If both brothers have yibbum with the two sisters, the court does not force them to separate, even though the first brother should have performed halitzah. Although the brother who first performed yibbum may have originally had yibbum with the sister of his z’kukah, since her sister has now had yibbum, her ties to the other brother have been severed and neither brother is currently married to the sister of his z’kukah.
The Talmud continues to discuss betrothal that cannot be followed by intercourse.
Each husband cannot have relations with either woman because she might be the sister of the one he betrothed. So if kiddushin that cannot be followed by betrothal is not kiddushin, then why is either woman betrothed? This is a difficulty against Rava.
Again, the Talmud resolves the difficulty by saying that at the point of kiddushin each man and each woman knew who was betrothing whom. The kiddushin were valid at that point. Then they were mixed up.
As with yesterday’s section, the Talmud asks why we need this mishnah. The answer is that it is there to teach the continuation of the same mishnah (Yevamot 2:7). The following is my commentary from Mishnah Yomit:
If Reuven and George (non-brothers) die, and each has only one brother (Shimon and Bill), Shimon must perform halitzah with both women and Bill must perform halitzah with both women. Neither can have yibbum with either woman because each woman might be the sister of the woman with whom he is truly liable to have yibbum, the z’kukah (because we don’t know who betrothed whom).
If Reuven has two brothers, Shimon and Levi and George still only has Bill as a brother, Bill must have halitzah with both Rachel and Leah. With regard to Shimon and Levi, one brother must have halitzah with both women but the other brother can have yibbum. This rule was explained in the above mishnah quoted in the previous section. The second brother can have yibbum with either women because if she was truly the woman who Reuven betrothed, then yibbum is proper. If Reuven betrothed the other sister, then the sister with whom this brother now has yibbum is no longer the sister of his z’kukah, because this other sister has already received halitzah from his other brother.
If both brothers preemptivelymarry both sisters, they are not forced to have a divorce. Certainly the second marriage is okay, and even the first marriage was only problematic in the beginning, before the second sister had yibbum. Even though the woman whom he married may have once been the sister of his z’kukah, after she has had yibbum the other sister is no longer a z’kukah.
With regard to the last example, the Talmud emphasizes that one brother must first performe halitzah and then the other can perform yibbum. But if one brother performs yibbum first he may be marrying someone else’s yevamah, and until someone performs halitzah with her, she may not be remarried.