שיהו חולצות ולא מתייבמות לא הספיקו לגמור את הדבר עד שנטרפה השעה that they should perform ḥalitza and not enter into levirate marriage. If they act in this manner, they will be permitted to marry others and the problem will be solved according to all opinions. They were unable to finalize the matter according to the proposition raised by Rabbi Yoḥanan ben Nuri before times of trouble arrived. Due to the outbreak of war they were unable to gather together to vote and establish an accepted halakhic ruling.
א"ל רשב"ג מה נעשה להם לצרות הראשונות מעתה Sometime later, when they returned to discuss the issue, Rabban Shimon ben Gamliel said to the other Sages: What shall we do with those earlier rival wives from now onward? Since in the meantime some rival wives had entered into levirate marriage, if we issue a collective ruling that rival wives may not do so, their children will be declared mamzerim. Therefore, it is better not to establish this halakha at all.
אי אמרת בשלמא עשו היינו דקאמר מה נעשה אלא אי אמרת לא עשו מאי מה נעשה The Gemara analyzes this episode in relation to the matter at hand. Granted, if you say that Beit Shammai did act in accordance with their own opinion, this is the meaning of what Rabban Shimon ben Gamliel said: What shall we do? Since these rival wives had already entered into levirate marriage, it was impossible to change the status of their children retroactively. However, if you say that they did not act in accordance with their opinion, what is the meaning of: What shall we do? If Beit Shammai did not act upon their ruling, they never actually permitted a yavam to take a rival wife in levirate marriage.
אמר רב נחמן בר יצחק לא נצרכה אלא לצרה עצמה ומה נעשה הכי קאמר הנך צרות דב"ה לב"ש היכי נעביד להו Rav Naḥman bar Yitzḥak said: This amendment was necessary, not for the benefit of the children of rival wives, as Beit Shammai never in fact acted on their ruling; rather, it was necessary only for the rival wife herself. If these rival wives married others, in the opinion of Beit Shammai their marriages were flawed, as they did not perform ḥalitza. And as for the question: What shall we do, this is what Rabban Shimon ben Gamliel is saying: With regard to those rival wives who were entirely exempt according to Beit Hillel, what should we do with them according to Beit Shammai, as these rival wives had already married others without performing ḥalitza?
ליחלצו מימאסי אגברייהו וכי תימא לימאסן (משלי ג, יז) דרכיה דרכי נועם וכל נתיבותיה שלום The Gemara elaborates: If you say let them perform ḥalitza, they will be repulsive to their husbands, as it will seem to the husband that the woman he has been living with for some time suddenly requires a permit for marriage. And if you would say, let them be repulsive to their husbands, as that is not our concern, this is not the case, as the Torah says: “Her ways are ways of pleasantness, and all her paths are peace” (Proverbs 3:17).
ת"ש דא"ר טרפון תאבני מתי תבא צרת הבת לידי ואשאנה אימא ואשיאנה § The Gemara suggests further: Come and hear another source, as Rabbi Tarfon said: I yearn for the following scenario: When shall my daughter’s rival wife come before me and I will marry her? In other words, in this hypothetical case I would act in accordance with the opinion of Beit Shammai and take her in levirate marriage. This statement indicates that those who held by the traditions of Beit Shammai did indeed act upon their opinion. The Gemara amends this statement. Say: And I will marry her off, i.e., I shall act in accordance with the opinion of Beit Hillel and marry her off to others.
והא תאבני קאמר לאפוקי מדרבי יוחנן בן נורי The Gemara asks: But he said: I yearn, and if he meant that he would follow the ruling of Beit Hillel, which is the common practice, what is the novelty of Rabbi Tarfon’s statement? The Gemara responds: Rabbi Tarfon comes to exclude the statement of Rabbi Yoḥanan ben Nuri, who maintains that all rival wives perform ḥalitza. Rabbi Tarfon yearned for an opportunity to demonstrate that the halakha is not in accordance with the opinion of Rabbi Yoḥanan ben Nuri.
ת"ש מעשה בבתו של רבן גמליאל שהיתה נשואה לאבא אחיו ומת בלא בנים וייבם רבן גמליאל את צרתה ותסברא רבן גמליאל מתלמידי ב"ש הוא The Gemara suggests: Come and hear an incident involving Rabban Gamliel’s daughter, who was married to Abba, his brother, and Abba died childless, and Rabban Gamliel entered into levirate marriage with her rival wife. This is apparently conclusive proof that the rival wife of a daughter may enter into levirate marriage. The Gemara asks: And how can you understand it that way? Was Rabban Gamliel among the disciples of Beit Shammai? In fact, Rabban Gamliel, who was a descendant of Hillel himself, certainly followed the opinion of Beit Hillel.
אלא שאני בתו של רבן גמליאל דאילונית הואי הא מדקתני סיפא אחרים אומרים בתו של רבן גמליאל אילונית היתה מכלל דתנא קמא סבר לאו אילונית היתה Rather, the case of Rabban Gamliel’s daughter is different, as she was a sexually underdeveloped woman [aylonit], and therefore the prohibition against marrying her rival wife does not apply, as explicitly stated in the mishna. The Gemara asks: But from the fact that it is taught in the latter clause of the same baraita: Others say that Rabban Gamliel’s daughter was an aylonit, it can be derived by inference that the first tanna holds that she was not an aylonit.
הכיר בה ולא הכיר בה איכא בינייהו The Gemara answers: The dispute between the tanna’im was not about whether or not she was an aylonit, as she certainly was. Rather, the practical difference between them is whether he knew that she was an aylonit at the time of marriage and decided to marry her regardless. Some maintain in general that if the husband was aware of her condition prior to marriage, her rival wife is forbidden, but if he did not know about her status, the rival wife is permitted.
ואיבעית אימא כנס ולבסוף גירש איכא בינייהו And if you wish, say that the practical difference between them concerns a different case, that of one who married and ultimately divorced. This is referring to an issue discussed above of whether a woman is considered the rival wife of a forbidden relation simply by virtue of her marriage to the specific man or whether she must be married to him at the time when the mitzva of levirate obligation takes effect, i.e., at the time of the brother’s death.
איבעית אימא יש תנאי בביאה איכא בינייהו And if you wish, say that the practical difference between them concerns a case where there is a condition in sexual relations. In other words, the first tanna holds that Rabban Gamliel’s daughter was married only conditionally, and since the condition was never fulfilled the marriage was nullified. Consequently, Rabban Gamliel could marry the other wife regardless of his daughter’s status as an aylonit, as she was never married to his brother at all. However, according to the other tanna, even if the marriage was dependent upon a condition that was not fulfilled, because the man engaged in sexual relations with her the act of intercourse itself serves to nullify the condition. Accordingly, he maintains that the only reason Rabban Gamliel could enter into levirate marriage with his daughter’s rival wife was not because of the condition, but due to the fact that his daughter was an aylonit. Whichever explanation is accepted, this case provides no proof with regard to the issue of whether or not Beit Shammai acted in accordance with their ruling.
מתיב רב משרשיא מעשה בר' עקיבא שליקט אתרוג באחד בשבט ונהג בו ב' עשורין § Rav Mesharshiyya raised an objection against those who claim that Beit Shammai did not act in accordance with their opinion. It is taught in a mishna: There was an incident involving Rabbi Akiva, who collected an etrog on the first of the month of Shevat and performed with it two tenths. In other words, he separated two tithes from the fruit, as though it belonged to two different tithing years. He removed both the second tithe and the poor man’s tithe at the same time, two tithes that should not be separated in the same year.
אחד כדברי ב"ש ואחד כדברי ב"ה ש"מ עשו The mishna explains: One tithe he removed in accordance with the statement of Beit Shammai, who hold that the new year for trees occurs on the first of Shevat, which means that the etrog required tithing according to the regulations of the upcoming year. And one tithe was in accordance with the statement of Beit Hillel, who hold the new year for trees is on the fifteenth of Shevat, and therefore the etrog required tithing in accordance with the previous year. The Gemara infers: Conclude from here that Beit Shammai did act in accordance with their opinion, as Rabbi Akiva took care to act in accordance with the ruling of Beit Shammai.
ר' עקיבא גמריה אסתפק ליה ולא ידע אי ב"ה באחד בשבט אמור או בט"ו בשבט אמור The Gemara answers: Rabbi Akiva was uncertain as to his tradition, and he did not know if Beit Hillel said that the New Year for trees occurs on the first of Shevat or if they said it is on the fifteenth of Shevat. He did not act in accordance with the opinion of Beit Shammai at all; rather, he sought to act in accordance with the ruling of Beit Hillel but was uncertain about their opinion on this matter.
מתיב מר זוטרא מעשה וילדה כלתו של שמאי הזקן ופיחת את המעזיבה וסיכך על גבי מטה בשביל קטן ש"מ עשו התם הרואה אומר לאפושי אויר קעביד § Mar Zutra raised an objection to this issue from a different source: There was an incident in which the daughter-in-law of Shammai the Elder gave birth to a son. In Shammai’s opinion this newborn baby is immediately obligated in the mitzva to sit in a sukka, and he therefore removed the mortar [ma’aziva] covering the ceiling and he placed sukka covering over the bed for the minor. Conclude from here that Beit Shammai did act in accordance with their opinions. The Gemara answers: There is no proof from there, as anyone watching would say that he did it merely to increase the air. Since people would not necessarily think that he removed the mortar as a ruling of halakha, this behavior is not considered the formation of a faction.
מתיב מר זוטרא מעשה בשוקת יהוא שהיתה בירושלים והיתה נקובה למקוה וכל טהרות שהיו בירושלים נעשים על גבה ושלחו בית שמאי והרחיבוה שבית שמאי אומרים עד שתיפחת ברובה Mar Zutra raised a further objection: There was an incident involving the Yehu water trough in Jerusalem, which had a hole that connected it to a ritual bath, and all the ritual purifications in Jerusalem were performed in it, i.e., people immersed their utensils in this trough. And Beit Shammai sent messengers and they widened the opening in the water trough, as in the opinion of Beit Shammai the hole was not large enough for the trough to be considered connected to the adjacent ritual bath as Beit Shammai say: The two areas are not connected unless the majority of it is opened. In other words, they require the major portion of the barrier between the ritual bath and the nearby trough to be open.
ותנן עירוב מקואות כשפופרת הנוד בעובייה ובחללה כשתי אצבעות חוזרות למקומן שמע מינה עשו התם And we learned in a mishna: Beit Hillel hold that a joining of ritual baths is effective if the hole has the width of the tube used to pour water in and out of a wineskin, and in its open space there is enough room for about two fingers that can return to their place. In other words, if it is possible to insert into the hole two fingers that can move around on all sides, the cavity is sufficiently large to be considered a connection. According to Beit Shammai, however, the hole must open up the majority of the barrier between the two areas. If so, conclude from this that Beit Shammai did act in accordance with their opinions. The Gemara rejects this contention: There,