Chapter XIII

Eighteen Treatises from the Mishna, by D. A. Sola and M. J. Raphall, [1843], at sacred-texts.com

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CHAPTER XIII.

§ 1. Beth Shammai hold that the right of refusal [‏מיאון‎] ¹ is permitted to those who are betrothed only; but Beth Hillel extend it to those [minors] also who had been married [under the nuptial canopy]. ² According to Beth Shammai [the right of refusal] is only available against the husband, but not against the brother-in-law [in case of Yeboom]; but Beth Hillel permit it against either. Beth Shammai will only allow [the refusal] when it was made in the presence of the husband; but Beth Hillel permit it in his absence, as well as in his presence. Beth Shammai require the refusal to be made [formally] before a Beth Din [tribunal]; but Beth Hillel consider a refusal not made before a tribunal sufficient. Beth Hillel said to Beth Shammai, "A girl may thus, during her minority, refuse four or five men." But the school of Shammai replied, "The daughters of Israel are not to be thus loosely dealt with, therefore, as soon as such a girl expressed her refusal, she must wait [to be again betrothed] till she has attained her majority, or expressed her refusal of the man to whom she is betrothed, ³ and marries another immediately.

§ 2. What minor [orphan girl] is hound to make a formal refusal? She who, with her consent, was married by her mother or brothers, but when she had been married. by them without her consent, she need not, to annul this marriage, pronounce a formal refusal. R. Hanina ben Atignos saith, "Any child who was then ⁴ incapable of taking care of the money, &c. [given her as her marriage bond] is also not required to make a formal refusal." R. Eleazar saith, "The act of a minor is a nullity, and such a girl can only be considered in the same light as one who had been seduced. Should she be the daughter of an Israelite, and he a priest, she may not eat heave, but if she is a priest's daughter, and he an Israelite, she may eat thereof."

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§ 3. R. Eleazar ben Jacob saith, "When the prolonged stay of such a woman ⁵ [who had been divorced from her husband] is owing to affection for him, she must be considered as his wife; but if it did not proceed from that cause, ⁶ she is not to be considered as his wife.

§ 4. When such a female has once formally expressed her refusal [of the man she was betrothed to], he may marry her near relatives, and she may marry his, and she is not disqualified from being married to one of the priesthood; but if he divorced her, he may not marry her, nor she his near relatives, and she is disqualified to be married to a priest. If he divorced her, and then desired to take her back, when she formally refused him, and married another from whom she was subsequently separated, or became a widow, the first husband may take her back; but if she had expressed her refusal, and the man took her again and then divorced her, upon which she was married to another, and became a widow, or was divorced, then the first husband may not take her back; the rule is when a Get was given after a declaration of refusal, he may not take her back, but he may do so if the refusal was posterior to the Get in point of time.

§ 5. When a woman who expressed her refusal of a man to whom she was betrothed, was married to another, and divorced by him; then again to a third, whom she refused, and thereupon married a fourth, by whom she was divorced; then again to a fifth, of whom she expressed a refusal: then is she not allowed to return to any of the men who had divorced her, but she may return to one of those whom she had refused.

§ 6. If a person divorced his wife and took her back, his brother may [at his decease without issue] marry her by Yeboom; but R. Eleazar prohibits this. Thus also may an orphan who had been divorced, and taken back, be married by Yeboom; but R. Eleazar prohibits this also. A female who, in her minority had been given in marriage by her father, and received a Get, is to he considered an orphan, even during her father's life. All agree, however, that in case he [i.e. the man from whom she was divorced] took her back she may not [at his desire] be married to his brother by Yeboom.

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§ 7. When two brothers are married to two sisters who are minors and orphans, and the husband of one dies, then the widow is released from Yeboom, as the sister of the brother-in-law's wife; also when both females are deaf and dumb. When one of the sisters has attained her majority, and the other is yet a minor, should the minor's husband die, she is released from Yeboom, as sister of the brother-in-law's wife. R. Eleazar says, "When the husband of the elder sister dies, the youngest sister must be instructed to refuse." ⁷ Rabbon Gamaliel saith, "If she refuses, it is well; if not, let her wait till she attains her majority; and then her sister will be released as a wife's sister." R. Joshua saith, "Such a man deserves commiseration, on account of his own wife, and his sister-in-law, because he must part with his wife by a Get, and is bound to receive Chalitzah from his sister-in-law.

§ 8. When a person who had married two orphans ⁸ in their minority dies, then the connexion which the surviving brother may have with one of them, or the Chalitzah he received front one of them, does also release her rival. The same applies in respect to deaf and dumb females; ⁹ but if one of the females is a minor, and the other is deaf and dumb, connexion with one does not release her rival. When one is sound, [i.e. neither deaf or dumb], and the other deaf and dumb, then does connexion with the sound one release her who is deaf and dumb, but not on the reverse case. If one has attained her majority, and the other is a minor, connexion with the eldest releases the younger, but not in the reverse case.

§ 9. When the husband of two orphans who are minors dies, and that the brother on whom the obligation of Yeboom devolved, had connexion first with one and then with the other, or that one of his brothers had connexion with the other sister-in-law, the first is not thereby disqualified to remain his wife. ¹⁰ The same applies to the case of two deaf and dumb women under the same circumstances.

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[paragraph continues] If one of the females is a minor, and the other deaf and dumb, and the brother on whom the duty of Yeboom devolved had connexion first with the minor, and then with the deaf and dumb one, or that a brother of his had connexion with this latter, the minor is not thereby disqualified to remain his wife, but if he had connexion first with the deaf and dumb one, and then with the minor, or that his brother had connexion with the minor, the deaf and dumb became disqualified to be his wife.

§ 10. When one of the females is sound [i.e. not deaf and dumb] and the other deaf and dumb, and the Yabam ¹¹ had connexion with the first mentioned, and afterwards with the last mentioned of his sisters-in-law, or that his brother had connexion with the latter, the sound one has not thereby . become disqualified to be his [the Yabam's] wife. If he had connexion first with the deaf and dumb woman, and then with the sound one, or that his brother had afterwards connexion with the sound one, the deaf and dumb female is disqualified.

§ 11. When one of the females is of age, and the other a minor, if the Yabam had connexion with the elder, and then with the minor, or that his brother had connexion with the latter, the elder is not disqualified. If he had connexion first with the minor, and then with the elder, or that his brother had connexion with this latter, the minor is disqualified. R. Eleazar saith, "The minor is to be instructed to make use of her right of refusal."

§ 12. When the Yabam and his sister-in-law are both minors, and had connexion together, they must grow up with each other [i.e. the Yabam has not the power to divorce her during his minority]. If the widow had then attained her majority, she must wait till he has attained his. If the widow declares within thirty days [after the marriage by Yeboom has taken place] that her husband has not consummated the marriage, he will be compelled to allow her to perform to him the ceremony of Chalitzah. When she made the mentioned declaration after the expiration of the thirty days, he is to be requested to allow her to perform Chalitzah to him; but when he admits the truth [of her accusation of the non-consummation of the marriage] he will be compelled even after a twelve month, to allow her to perform to him the ceremony of Chalitzah.

§ 13. When a woman made a vow during her husband's life not

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to receive any benefit whatever from the brother-in-law on whom the duty of Yeboom devolves, the latter will be compelled to allow her to perform the ceremony of Chalitzah to him: if she made this vow after the death of her husband, he is to be requested to allow her to perform Chalitzah to him; but when she made the vow with the intention of being thereby freed from the claim the brother-in-law has on her, he is in that case merely to be requested to allow her to perform to him the ceremony of Chalitzah.

Footnotes

227:1 Namely, that of an orphan girl, who, during her minority, was betrothed by her mother or brothers, and who, on attaining her majority, has a right to refuse her consent, and render the betrothing void.

227:2 Which completes the marriage.

227:3 According to the school of Shammai she is not entitled to refuse again.

227:4 When she is under the age of six, or even of ten years, in case she is innocent, and did not well know the meaning, or was not aware of the extent of the engagement she had entered into.

228:5 Namely, the orphan who had been betrothed in her infancy, &c., who had not refused the husband intended for her, but had been rejected and divorced by him.

228:6 When she expressed her refusal, and insisted on having her engagement annulled.

229:7 And as her marriage thus becomes void, her husband may marry her sister.

229:8 Who are not related.

229:9 This must be understood as limited to the connexion with the brother-in-law, but not to the Chalitzah, which a deaf and dumb woman is not qualified to perform.

229:10 The reason is this, either the marriage with these minors is legal, or it is not; if it is legal, then the first becomes at once the brother-in-law's lawful wife by Yeboom, by the act of connexion with him; and the connexion he had with the second is unlawful connexion; and if the marriage was illegal, then both widows are only strangers to the supposed brother-in-law.

230:11 This word signifies the brother-in-law, on whom the duty of Yeboom has devolved, by the death of his brother without issue.