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Babylonian Talmud: Tractate Yebamoth
[The comparison] might well be justified where the deceased brother married [first]1 and the surviving brother married [his brother's wife's sister] afterwards,2 for, in this case, since the prohibition of brother's wife was removed,3 that of wife's sister4 is also removed; but where the surviving brother had married [first] and the deceased brother had married subsequently, the prohibition of wife's sister was Surely in force first!5 Furthermore, even where the deceased had married [first], [the comparison] would be justified in the case where the deceased had married and died, and the surviving brother had married afterwards so that [the widow] was eligible in the interval;6 where, however, the deceased had married, and before he died his wife's sister was married by his surviving brother, [his widow] was never for a moment eligible for his brother! Does not 'Ulla admit that if the leper observed semen on the night preceding the eighth day7 of his purification he must not project his hand into the Sanctuary on account of his thumb8 because at the time he was eligible to bring the sacrifice [of the cleansed leper]9 he was not free from uncleanness?10
But [this is really the explanation]: If ''aleha' was at all needed, [it was for such a case as] where the deceased brother had married [first] and died, and the surviving brother married [the widow's sister] subsequently.11
If you prefer I can say [that the reason12 is because] it13 might have been deduced by means of R. Jonah's analogy. For R. Jonah — others say, R. Huna son of R. Joshua — said: 'Scripture stated: For whosoever shall do any of these abominations shall be cut off,14 all forbidden relatives were compared to a brother's wife';15 [so in this case also it might have been said], as a brother's wife is permitted16 so also are all other forbidden relatives permitted; hence the All Merciful has written, ''aleha'.17
Said R. Aha of Difti18 to Rabina: Consider! All forbidden relatives19 might be compared to a brother's wife20 and might equally be compared to a wife's sister,21 what reason do you see for comparing them to a wife's sister?21 Compare them rather to a brother's wife!20 — If you wish I might say: When a comparison may be made for increasing as well as for decreasing restrictions, that for increasing restrictions must be preferred. If you prefer, however, I might say: In the former cases22 there are two prohibitions in the one as well as in the other,23 and a double prohibition may justly be inferred from a double prohibition; in the latter case, however,24 only one prohibition is involved,25 and a double prohibition may not be inferred from a single one.
Raba said: [That] a forbidden relative herself26 [may not contract the levirate marriage] requires no Scriptural text to prove it, since no positive precept can supersede a prohibition which involves kareth; if a Scriptural text was at all needed it was for the purpose of forbidding a rival.
And in the case of a forbidden relative is no Scriptural text required [to prohibit her levirate marriage]? Surely it was taught, 'Thus we are in a position to know the law concerning herself'!27 — On account of her rival.28 Was it not taught, however, 'Now we know the law concerning themselves'?29 — On account of their rivals.30
Come and hear: Rabbi said: [Instead of] and take, [Scripture stated], and take her,31 [and instead of] and perform the duty of a husband's brother [Scripture stated], and perform the duty of a husband's brother unto her,31 in order to prohibit32 [the levirate marriage of] forbidden relatives and their rivals!33 — Read, 'To forbid [the levirate marriage of] the rivals of the forbidden relatives'. But two texts, surely, were mentioned;34 was not one for the forbidden relative and the other for her rival? — No; both were for the rival, but one indicates prohibition35 of a rival where the precept35 is applicable, and the other indicates permission to marry the rival where the precept35 is not applicable.36 What is the reason? — [Because instead of] 'And perform the duty of a husband's brother' [Scripture stated] And perform the duty of a husband's brother UNTO HER, [which indicates that] only where levirate marriage is applicable is a rival forbidden37 but where levirate marriage is not applicable36 a rival is permitted.37 R. Ashi said: [This38 may] also be inferred from our Mishnah where it was stated, FIFTEEN [CATEGORIES OF] WOMEN EXEMPT THEIR RIVALS, but it was not stated, 'are exempt39 and exempt [their rivals]'. This proves it.
In what respect does the case of a forbidden relative differ40 that it should require no text?41 Obviously because no positive precept may supersede a prohibition which involves kareth. But then the case of a rival also should require no text,41 since no positive precept may supersede a prohibition which involves kareth!42 — Said R. Aha b. Bebai Mar to Rabina, Thus it has been stated in the name of Raba: In the case of a rival also no Scriptural text41 was needed; if a text was needed at all
it was for the purpose of permitting a rival where the precept1 is not applicable. What is the reason?2 — Scripture stated, ''aleha',3 to indicate that only in the case of 'unto her'4 is she5 forbidden,6 where the other, however, may not, she is permitted.
Said Rami b. Hama to Raba: Might it not be suggested7 that the forbidden relative8 herself is permitted9 where the precept10 is not applicable? — Is not [such an argument contrary to the principle of inference] a minori ad majus? Being forbidden where the precept10 is applicable, would she be permitted where the precept is not applicable? — ['The case of a] rival', the first replied, 'could prove it, since she is forbidden9 where the precept10 is applicable, and is permitted9 where the precept10 is not applicable'. 'It is for your sake,' the other replied, 'that Scripture states, In her life-time,11 so long as she12 lives'.13 But is not the expression,14 In her life-time,11 required for the exclusion [of the prohibition of marriage] after her12 death?15 — This is deduced from the text, And a woman to her sister.11 If [the deduction were only] from the text. 'And a woman to her sister',11 it might have been said that if she16 was divorced the sister would be permitted, hence it was expressly stated, 'In her life-time.'11 So long as she16 is alive, even though she has been divorced, [her sister must] not [be married]!17 — But, said R. Huna b. Tahlifa in the name of Raba, two Scriptural texts are available; it is written, Thou shalt not take a woman to her sister, to be a rival to her18 [implying two],19 and it is also written, To uncover her nakedness,20 which implies that only one is forbidden; how then [are the two texts to be reconciled]? Where the precept21 is applicable both are forbidden;22 where the precept21 is not applicable she23 is forbidden but her rival is permitted. Might not the deduction be reversed: Where the precept21 is applicable she23 is forbidden but her rival is permitted, but where the precept is not applicable both are forbidden!22 — If so, ''aleha' should not have been stated.24
Said R. Ashi to R. Kahana: Whence is it derived that the expression ''aleha'25 indicates prohibition? Is it not possible that it implies permission, and that it is this that the All Merciful meant to imply: Thou shalt not take a woman to her sister, to be a rival to her,25 neither herself nor her rival where 'unto her'26 is not applicable,27 but where 'unto her'26 is applicable28 both are permitted!29 — If so, how could the 'uncovering of the nakedness' of one30 be possible? If in the case where the precept31 is applicable, both are permitted;32 and if where the precept is not applicable both are forbidden!33
[Reverting to] the [above] text, Rabbi said: Instead of And take, Scripture stated, 'And take her' and instead of 'And perform the duty of a husband's brother', Scripture stated, 'And perform the duty of a husband's brother unto her', in order to prohibit [the levirate marriage of] forbidden relatives and their rivals. Are, then, rivals mentioned here at all? And, furthermore, the law of rivals has been derived from the expression To be her rival!34 — The expression To be her rival is employed by Rabbi for R. Simeon's deduction.35 Where,36 however, is the rival mentioned?37 — What he meant is this: If so,38 Scripture should have stated, And take; why then did it state, 'And he shall take her'?39 To indicate that wherever there are two to be taken,40 he41 having the choice of marrying whichever he prefers42 both are permitted,43 but if not,44 both are forbidden; And perform the duty of a husband's brother unto her,45 indicates that where levirate marriage is applicable there is the rival forbidden, where, however, levirate marriage is not applicable the rival is permitted.
As to the Rabbis,46 to what do they apply the verse 'And he shall take her'? — They require it for the deduction of R. Jose b. Hanina. For R. Jose b. Hanina said: 'And he shall take her'45 teaches that he47 may divorce her with a letter of divorce48 and that he may remarry her;49 And he shall perform the duty of a husband's brother unto her, even against her will.50 And Rabbi?51 — The law of R. Jose b. Hanina is deduced from To a wife,45 and that the marriage may take place against her will is deduced from Her husband's brother shall go in unto her.45
What does Rabbi do with [the expression], ''aleha'? — He requires it [for another deduction], as we learnt: The Beth din52 are under no obligation53 unless [they ruled] concerning a prohibition the punishment for which is kareth, if the transgression was wilful, and a sin-offering if the transgression was unwitting; and so it is with the anointed High priest.
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