הָתָם אִי לְמַאן דְּאָמַר יֵשׁ זִיקָה יֵשׁ זִיקָה וְאִי לְמַאן דְּאָמַר אָסוּר לְבַטֵּל מִצְוַת יְבָמִין אָסוּר לְבַטֵּל מִצְוַת יְבָמִין הָכָא כׇּל חַד וְחַד אֵימוֹר דִּידֵיהּ קָא מִתְרַמְיָא לֵיהּ There, in that mishna, if it is according to the one who said that the levirate bond is substantial, then there is a bond in that case, as two sisters were certainly married to the brothers and require levirate marriage. And if it is according to the one who said that it is prohibited to nullify the levirate mitzva through marrying the sister of the yevama, then the explanation of that mishna is that it is prohibited to nullify the levirate mitzva and for this reason they must perform ḥalitza and may not enter into levirate marriage. However, here, in this mishna, there is uncertainty concerning the betrothal such that with regard to each one of the brothers, one could say that possibly he encountered his own yevama. Perhaps each brother took his own brother’s wife in levirate marriage, and for this reason the Sages did not issue a decree.
קָדְמוּ וְכָנְסוּ אֵין מוֹצִיאִין כּוּ׳ תָּנֵי שֵׁילָא וַאֲפִילּוּ שְׁנֵיהֶם כֹּהֲנִים מַאי טַעְמָא חֲלוּצָה דְּרַבָּנַן הִיא וְסָפֵק חֲלוּצָה לָא גְּזַרוּ בְּהוּ רַבָּנַן § The mishna states that if they married their wives before consulting the court, the court does not remove them from the marriage. Sheila teaches a baraita that clarifies the mishna: And this is the case even if both of the brothers were priests. A woman who performed ḥalitza is normally forbidden to a priest, yet in this case, although the brother of the other man performed ḥalitza, they are not required to divorce. What is the reason for this halakha? It is as follows: A ḥalutza is forbidden to a priest by rabbinic law because her status is similar to that of a divorcée, who is forbidden to a priest by Torah law. And in a case of uncertainty as to whether she is a ḥalutza, since it may not have been her yavam who performed the ceremony, the Sages did not issue a decree.
וַחֲלוּצָה דְּרַבָּנַן הִיא וְהָתַנְיָא גְּרוּשָׁה אֵין לִי אֶלָּא גְּרוּשָׁה חֲלוּצָה מִנַּיִן תַּלְמוּד לוֹמַר וְאִשָּׁה מִדְּרַבָּנַן הוּא וּקְרָא אַסְמַכְתָּא בְּעָלְמָא הוּא The Gemara asks: And is the prohibition against a ḥalutza marrying a priest really by rabbinic law? But isn’t it taught in a baraita: “They shall not take a woman that is a harlot, or profaned; neither shall they take a woman divorced from her husband; for he is holy unto his God” (Leviticus 21:7). I have derived only a divorcée; from where do I derive that a priest may not marry a ḥalutza? The verse states: “Neither shall they take a woman.” The repetition of the word “woman” extends the halakha to include a ḥalutza. The Gemara answers: This prohibition is by rabbinic law, and the verse is a mere support.
מַתְנִי׳ מִצְוָה בַּגָּדוֹל לְיַיבֵּם וְאִם קָדַם הַקָּטָן זָכָה MISHNA: It is a mitzva for the eldest to consummate the levirate marriage, i.e., the eldest takes precedence over the other brothers, though they too are obligated. But if the younger brother consummated the levirate marriage first, he acquires the yevama as his wife.
גְּמָ׳ תָּנוּ רַבָּנַן וְהָיָה הַבְּכוֹר מִיכָּן שֶׁמִּצְוָה בַּגָּדוֹל לְיַיבֵּם אֲשֶׁר תֵּלֵד פְּרָט לְאַיְלוֹנִית שֶׁאֵין יוֹלֶדֶת יָקוּם עַל שֵׁם אָחִיו לְנַחֲלָה GEMARA: The Sages taught the following interpretation of the verse: “And it shall be that the firstborn that she bears shall be established in the name of his dead brother and his name will not be blotted out of Israel” (Deuteronomy 25:6). From here the Sages derive that the mitzva to consummate the levirate marriage is upon the eldest. The next phrase: “That she bears,” is interpreted to exclude levirate marriage in the case of a widow who is an aylonit, who cannot bear children. From the next phrase: “Shall be established in the name of his dead brother,” it is derived that the same brother who performs the mitzva of levirate marriage is established in his brother’s name with regard to inheritance, i.e., he inherits his brother’s property.
אַתָּה אוֹמֵר לְנַחֲלָה אוֹ אֵינוֹ אֶלָּא לְשֵׁם יוֹסֵף קוֹרִין אוֹתוֹ יוֹסֵף יוֹחָנָן קוֹרִין אוֹתוֹ יוֹחָנָן נֶאֱמַר כָּאן יָקוּם עַל שֵׁם אָחִיו וְנֶאֱמַר לְהַלָּן עַל שֵׁם אֲחֵיהֶם יִקָּרְאוּ בְּנַחֲלָתָם מָה שֵׁם הָאָמוּר לְהַלָּן נַחֲלָה אַף שֵׁם הָאָמוּר כָּאן לְנַחֲלָה The baraita continues and asks: Do you say that he succeeds in the name of his brother for inheritance, or perhaps it is only to inherit his name? If, e.g., the deceased brother was named Yosef, they must call the son born from levirate marriage Yosef, or if his name was Yoḥanan, then they must call him Yoḥanan. The baraita answers: It is stated here: “He shall succeed in the name of his brother,” and it is stated there: “They shall be called after the name of their brothers in their inheritance” (Genesis 48:6). Just as the word “name” stated there in Genesis is referring explicitly to inheritance, so too, the word “name” stated here in Leviticus means with regard to inheritance.
וְלֹא יִמָּחֶה שְׁמוֹ פְּרָט לְסָרִיס שֶׁשְּׁמוֹ מָחוּי The baraita continues to expound the next phrase of the verse: “And his name will not be blotted out of Israel” (Deuteronomy 25:6). This excludes the case where the deceased was a eunuch, as his name is already blotted out, since it is impossible for him to have children.
אָמַר רָבָא אַף עַל גַּב דִּבְכׇל הַתּוֹרָה כּוּלָּהּ אֵין מִקְרָא יוֹצֵא מִידֵי פְשׁוּטוֹ הָכָא אֲתַאי גְּזֵרָה שָׁוָה אַפֵּיקְתֵּיהּ מִפְּשָׁטֵיהּ לִגְמָרֵי Rava said: Even though in the entire Torah a verse does not depart from its literal meaning, and even if the Sages offer a homiletical interpretation of the verses, the literal meaning remains intact, here the verbal analogy teaching that the word “name” is referring to inheritance comes to remove the verse from its literal meaning altogether.
וְאִי לָאו גְּזֵרָה שָׁוָה הֲוָה אָמֵינָא שֵׁם שֵׁם מַמָּשׁ לְמַאן קָמַזְהַר רַחֲמָנָא לְיָבָם יָקוּם עַל שֵׁם אָחִיךָ מִיבְּעֵי לֵיהּ אִי לְבֵי דִינָא יָקוּם עַל שֵׁם אֲחִי אָבִיו מִיבְּעֵי לֵיהּ The Gemara asks: Were it not for the verbal analogy, would I have said that the meaning of the word “name” is the actual name? The verse would be incomprehensible according to the literal reading. Whom is the Merciful One instructing in this verse? To whom does the possessive pronoun in the phrase “his brother” apply? If He is speaking to the yavam, He should have stated: Shall succeed in the name of your dead brother. And if the verse is instructing the court about the halakha in general, it should have said: Shall succeed in the name of his father’s brother.
וְדִלְמָא הָכִי קָאָמַר לְהוּ רַחֲמָנָא לְבֵית דִּין אֱמַרוּ לֵיהּ לְיָבָם יָקוּם עַל שֵׁם אָחִיו אֶלָּא אֲתַאי גְּזֵרָה שָׁוָה אַפֵּיקְתֵּיהּ לִגְמָרֵי The Gemara rejects this question: And perhaps this is what the Merciful One is saying to the court: Say to the yavam that the child born to him shall be established in the name of his brother. Were it not for the verbal analogy, the verse could have been understood according to its literal meaning. Rather, the verbal analogy comes to remove it from its literal meaning altogether.
הַשְׁתָּא דְּאָמְרַתְּ קְרָא בְּגָדוֹל כְּתִיב אֵימָא בְּכוֹר לְיַיבֵּם פָּשׁוּט לָא לְיַיבֵּם The Gemara challenges the baraita: Now that you say that the verse: “And it shall be that the firstborn that she bears” is written in reference to the eldest brother, say that the firstborn brother consummates the levirate marriage but that an ordinary brother, i.e., not the firstborn, may not consummate the levirate marriage, and that if the firstborn son is unable to enter into levirate marriage or is no longer alive, no one else may perform the mitzva.
אִם כֵּן אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ דְּמַיעֵט רַחֲמָנָא לְמָה לִי The Gemara answers: If so that the mitzva of levirate marriage applies only to the firstborn, then in the case of a wife of a brother with whom he did not coexist, which the Merciful One excluded by the verse: “If brothers dwell together,” why do I need such an exclusion? If only the firstborn is obligated to perform levirate marriage, then there is no need to separately exclude the case of a wife of one’s brother with whom one did not coexist, because by definition one in that position cannot be the firstborn.
פָּרֵיךְ רַב אַחָא וְאֵימָא לְמַעוֹטֵי בּוּכְרָא דְאִמָּא הָהוּא לָא מָצֵית אָמְרַתְּ דְּיִבּוּם בְּנַחֲלָה תְּלָה רַחֲמָנָא וְנַחֲלָה מִן הָאָב וְלֹא מִן הָאֵם Rav Aḥa refutes the Gemara’s answer: But say that the verse comes to exclude the case of a brother with whom one did not coexist when one is nevertheless the firstborn of the mother, e.g., if the father had two wives. The Gemara rejects this: You cannot say that, as the Merciful One made levirate marriage dependent upon inheritance, and inheritance comes from the father and not from the mother.
וְאֵימָא כִּי אִיכָּא בְּכוֹר תִּתְקַיֵּים מִצְוַת יִבּוּם כִּי לֵיכָּא בְּכוֹר לֹא תִּתְקַיֵּים מִצְוַת יִבּוּם אָמַר קְרָא וּמֵת אַחַד מֵהֶם מִי לָא עָסְקִינַן דְּמִית בְּכוֹר וְאָמַר רַחֲמָנָא לְיַיבֵּם קָטָן The Gemara again challenges the baraita: Then say that when there is a firstborn the mitzva of levirate marriage can be fulfilled by any of the brothers, but that when there is no firstborn, e.g., if he had already died, the mitzva of levirate marriage may not be fulfilled by any of the younger brothers. The Gemara answers: The verse states: “And one of them dies” (Deuteronomy 25:5), without specifying which brother dies. Are we not dealing even with the case where the firstborn died, and yet the Merciful One states that the younger brother should consummate the levirate marriage?
וְאֵימָא דְּמִית קָטָן וְאָמַר רַחֲמָנָא לְיַיבֵּם בְּכוֹר הָא מִיעֵט רַחֲמָנָא אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ The Gemara refutes this answer: Say that the case in the Torah is referring to when the younger brother died, and only then the Merciful One states that the firstborn must consummate the levirate marriage. The Gemara answers: Didn’t the Merciful One explicitly exclude the wife of a brother with whom he did not coexist, which can apply only to a brother who was not the firstborn?
וְאֵימָא כִּי לֵיכָּא בְּכוֹר קְדַם קָטָן זְכָה וְאִי אִיכָּא בְּכוֹר קְדַם קָטָן לָא זְכָה אָמַר קְרָא כִּי יֵשְׁבוּ אַחִים יַחְדָּו הוּקְּשָׁה יְשִׁיבַת אַחִים זֶה לָזֶה The Gemara challenges the halakha: Say that when there is no firstborn brother, if a younger brother went ahead and consummated the levirate marriage, then he acquires his yevama as a wife. But if there is a firstborn, and the younger brother went ahead and performed levirate marriage first, then he does not acquire his yevama as a wife, because the Torah specifies that the firstborn brother must perform the mitzva. The Gemara rejects this: The verse states: “If brothers dwell together” (Deuteronomy 25:5), implying that the brothers’ dwellings were equated one with the other, and all the brothers are equally obligated in this mitzva.
וְאֵימָא כִּי אִיכָּא בְּכוֹר לֶיהְדַּר אַגָּדוֹל כִּי לֵיכָּא בְּכוֹר אֵין חוֹזְרִין אֵצֶל גָּדוֹל אַלְּמָה תָּנֵי אַבָּיֵי קַשִּׁישָׁא מִצְוָה בַּגָּדוֹל לְיַיבֵּם לֹא רָצָה הוֹלְכִים אֵצֶל אָחִיו הַקָּטָן לֹא רָצָה חוֹזְרִין אֵצֶל גָּדוֹל The Gemara challenges the halakha again: Then say: When there is a firstborn, let the mitzva return to the eldest brother if the other brothers refuse to perform levirate marriage. But when there is no firstborn, the court does not return to the eldest, as the mitzva primarily applies specifically to the firstborn, and if there is no firstborn, none of the brothers take precedence. Why did Abaye the Elder teach: It is a mitzva for the eldest of the brothers to consummate the levirate marriage? If the eldest did not wish to do so, then the court goes to his younger brother. If he also did not wish to do so, the court returns again to the eldest. This implies that the eldest, even if he is not the firstborn, has a greater mitzva than the younger brothers.
כִּבְכוֹר מָה בְּכוֹר בְּכוֹרָתוֹ גָּרְמָה לוֹ אַף גָּדוֹל גְּדוּלָּתוֹ גָּרְמָה לוֹ The Gemara answers: Since it is derived that the eldest brother takes precedence from the verse about the firstborn, then just as with regard to the firstborn, his status as firstborn causes him to take precedence, so too, with regard to the eldest, his status as eldest causes him to take precedence.
וְאֵימָא כִּי מְיַיבֵּם בְּכוֹר לִישְׁקוֹל נַחֲלָה כִּי מְיַיבֵּם פָּשׁוּט לָא לִישְׁקוֹל נַחֲלָה אָמַר קְרָא יָקוּם עַל שֵׁם אָחִיו וַהֲרֵי קָם The Gemara challenges the halakha again: Then say that if the firstborn consummates the levirate marriage he receives his deceased brother’s inheritance, but if an ordinary brother consummates the levirate marriage he does not receive the inheritance. The Gemara answers that the verse states: “The firstborn that she bears shall be established in the name of his dead brother” (Deuteronomy 25:6), and if the younger brother performs levirate marriage he has established his brother’s name and thereby earns the inheritance.
וְאֶלָּא בְּכוֹר דְּקַרְיֵיהּ רַחֲמָנָא The Gemara asks: But if there is no difference between the firstborn and the eldest, why does the Merciful One call the brother who enters levirate marriage the firstborn?