אָמַר רַב מִנַּיִן שֶׁאֵין קִדּוּשִׁין תּוֹפְסִין בִּיבָמָה שֶׁנֶּאֱמַר לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה לְאִישׁ זָר לֹא תְּהֵא בָּהּ הֲוָיָה לְזָר that Rav said: From where is it derived that betrothal by another man does not take effect with a yevama? As it is stated: “The wife of the dead man shall not be married outside of the family to one not of his kin” (Deuteronomy 25:5), which indicates: She shall not have the possibility of becoming married to one not of his kin, i.e., his betrothal is of no account.
וּשְׁמוּאֵל אָמַר בַּעֲנִיּוּתֵינוּ צְרִיכָה גֵּט מְסַפְּקָא לֵיהּ לִשְׁמוּאֵל הַאי לָא תִהְיֶה אֵשֶׁת הַמֵּת אִי לְלָאו הוּא דַּאֲתָא אִי דְּלָא תָּפְסִי בַּהּ קִדּוּשִׁין הוּא דַּאֲתָא And Shmuel said: In our poverty of knowledge, as we do not fully understand the verse, she requires a bill of divorce. The Gemara explains: Shmuel was uncertain with regard to this verse: “The wife of the dead man shall not be married outside,” whether it comes for a prohibition, i.e., the woman is prohibited from marrying another man but the betrothal of that other man is effective, or whether it comes to teach that betrothal by any other man does not take effect with her.
אֲמַר לֵיהּ רַב מָרִי בַּר רָחֵל לְרַב אָשֵׁי הָכִי אָמַר אַמֵּימָר הֲלָכָה כְּווֹתֵיהּ דִּשְׁמוּאֵל אָמַר רַב אָשֵׁי הַשְׁתָּא דְּאָמַר אַמֵּימָר הִלְכְתָא כְּווֹתֵיהּ דִּשְׁמוּאֵל אִם הָיָה יְבָמָהּ כֹּהֵן חוֹלֵץ לָהּ וְשַׁרְיָא לֵיהּ Rav Mari bar Raḥel said to Rav Ashi that Ameimar said as follows: The halakha is in accordance with the opinion of Shmuel. Rav Ashi said: Now that Ameimar said that the halakha is in accordance with the opinion of Shmuel, who maintains that one who betroths a yevama before she has performed ḥalitza must give her a bill of divorce, if her yavam was a priest, he performs ḥalitza with her, as she is forbidden to him after the man who betrothed her gave her a bill of divorce, and she is thereby permitted to the man to whom she was betrothed.
אִיתְּגוֹרֵי אִיתְּגַר אִם כֵּן מָצִינוּ חוֹטֵא נִשְׂכָּר אֶלָּא אִם הָיָה יְבָמָהּ יִשְׂרָאֵל נוֹתֵן לָהּ שֵׁנִי גֵּט וְהוּתְּרָה לוֹ The Gemara expresses surprise at this ruling: But in that case, she thereby gains from her prohibited betrothal, as she may subsequently marry the man who betrothed her illegally. If so, we find a sinner benefiting from his transgression. Rather, the Gemara emends the teaching: If her yavam was a regular Israelite, this second man who betrothed her must give her a bill of divorce, and she is permitted to the yavam, as a non-priest may marry a divorcée.
אָמַר רַב גִּידֵּל אָמַר רַב חִיָּיא בַּר יוֹסֵף אָמַר רַב יְבָמָה קִדּוּשִׁין אֵין בָּהּ נִשּׂוּאִין יֵשׁ בָּהּ אִי קִדּוּשִׁין אֵין בָּהּ נִשּׂוּאִין נָמֵי אֵין בָּהּ אֵימָא קִדּוּשִׁין וְנִשּׂוּאִין אֵין בָּהּ § Rav Giddel said that Rav Ḥiyya bar Yosef said that Rav said: With regard to a yevama, betrothal does not apply to her, but marriage does apply to her. The Gemara expresses puzzlement: If betrothal does not apply to her, marriage also should not apply to her. How can marriage take effect if the earlier and less binding stage of betrothal is of no consequence? Rather, emend the above statement and say: Neither betrothal nor marriage apply to her.
וְאִיבָּעֵית אֵימָא מַאי נִשּׂוּאִין יֵשׁ בָּהּ בִּזְנוּת כִּדְרַב הַמְנוּנָא דְּאָמַר רַב הַמְנוּנָא שׁוֹמֶרֶת יָבָם שֶׁזִּינְּתָה אֲסוּרָה לִיבָמָהּ And if you wish, say a different explanation. What is the meaning of the phrase: Marriage does apply to her? It is referring to a case of licentious sexual relations. In other words, although Rav maintains that betrothal is ineffective for her, if she entered the wedding canopy with another man and had relations with him, her status changes and she is forbidden to the yavam. This is in accordance with the opinion of Rav Hamnuna, as Rav Hamnuna said that a widow awaiting her yavam who committed an act of licentious sexual relations is forbidden to her yavam.
וְאִי בָּעֵית אֵימָא לְעוֹלָם כְּדַאֲמַרַן מֵעִיקָּרָא קִדּוּשִׁין אֵין בָּהּ נִשּׂוּאִין יֵשׁ בָּהּ דְּמִיחַלְּפָא בְּאִשָּׁה שֶׁהָלַךְ בַּעְלָהּ לִמְדִינַת הַיָּם And if you wish, say: Actually, it is as we said initially, that betrothal does not apply to her but marriage does apply to her. However, this does not mean that marriage is actually effective. Rather, the halakha is that he must give her a bill of divorce, as people might confuse this case with that of a woman whose husband went overseas. The Sages decreed that he must give her a bill of divorce so that people would not say that a woman who remarried after hearing that her husband had died likewise does not require a bill of divorce.
אָמַר רַבִּי יַנַּאי בַּחֲבוּרָה נִמְנוּ וְגָמְרוּ אֵין קִדּוּשִׁין תּוֹפְסִין בִּיבָמָה אֲמַר לֵיהּ רַבִּי יוֹחָנָן רַבִּי לֹא מִשְׁנָתֵנוּ הִיא זוֹ דִּתְנַן הָאוֹמֵר לָאִשָּׁה הֲרֵי אַתְּ מְקוּדֶּשֶׁת לִי לְאַחַר שֶׁאֶתְגַּיֵּיר לְאַחַר שֶׁתִּתְגַּיְּירִי לְאַחַר שֶׁאֶשְׁתַּחְרֵר לְאַחַר שֶׁתִּשְׁתַּחְרְרִי לְאַחַר שֶׁיָּמוּת בַּעְלִיךְ לְאַחַר שֶׁתָּמוּת אֲחוֹתִיךְ אוֹ לְאַחַר שֶׁיַּחְלוֹץ לִיךְ יְבָמִיךְ אֵינָהּ מְקוּדֶּשֶׁת אֲמַר לֵיהּ אִי לָאו דְּדַלַּאי לָךְ חַסְפָּא מִי מַשְׁכַּחַתְּ מַרְגָּנִיתָא תּוּתֵיהּ § Rabbi Yannai said: In the group of Sages who discussed this matter, they counted and concluded that betrothal by another man does not take effect with a yevama. Rabbi Yoḥanan said to him: My teacher, is this not taught in a mishna that states that betrothal is of no account for such a woman? As we learned in a mishna (Bava Metzia 16b): With regard to one who says to a woman: You are hereby betrothed to me after I convert; after you convert; after I am freed from slavery; after you are freed; after your husband dies; after your sister dies; or after your yavam performs ḥalitza with you, she is not betrothed. The reason for the above ruling is that he is considered to be attempting to acquire an entity that is not yet in existence, as the betrothal cannot take effect at that point in time. This indicates that betrothal is entirely ineffective for a yevama until she performs ḥalitza. Rabbi Yannai said to Rabbi Yoḥanan: Had I not lifted the earthenware shard for you, would you have discovered the pearl [marganita] beneath it? It was only after I informed you of the halakha that you were able to cite a proof for it from a mishna.
אֲמַר לֵיהּ רֵישׁ לָקִישׁ אִי לָאו דְּקַלְּסָךְ גַּבְרָא רַבָּה הֲוָה אָמֵינָא לָךְ אֲנָא מַתְנִיתִין רַבִּי עֲקִיבָא הִיא דְּאָמַר אֵין קִידּוּשִׁין תּוֹפְסִין בְּחַיָּיבֵי לָאוִין Sometime later, Reish Lakish said to Rav Yoḥanan: If it were not for the fact that a great man, Rabbi Yannai, praised you, I would say that this is no proof, as it is possible that the mishna is in accordance with the opinion of Rabbi Akiva, who said that betrothal does not take effect for those liable for violating regular prohibitions, and therefore it is not effective with a yevama. However, according to the opinion of the Rabbis, betrothal is effective for this woman, as is the case with all regular prohibitions.
וְאִי רַבִּי עֲקִיבָא כִּי אָמַר לַהּ לְאַחַר שֶׁיַּחֲלוֹץ לִיךְ יְבָמִיךְ לִיתְפְּסוּ בָּהּ קִידּוּשֵׁי דְּהָא שָׁמְעִינַן לֵיהּ לְרַבִּי עֲקִיבָא דְּאָמַר אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם דִּתְנַן The Gemara asks: And if it is the opinion of Rabbi Akiva, when he said to her: After your yavam performs ḥalitza for you, let the betrothal take effect with her, as we have heard that Rabbi Akiva said that a man can transfer an entity that has not yet come into the world. In other words, Rabbi Akiva is of the opinion that an acquisition can take effect for something not yet in existence. If so, even if the betrothal cannot take effect now, it should be valid after she has performed ḥalitza. The proof that this is indeed Rabbi Akiva’s opinion is as we learned in a mishna (Ketubot 59a):