Yevamot, Chapter Thirteen, Mishnah Seven
This mishnah discusses situations where a woman becomes liable for yibbum or halitzah to her sisters husband. Generally in such a case the woman is completely exempt. However, these cases are slightly different because at least on of the marriages is only of rabbinic status.
1) If two brothers were married to two sisters who were minors and orphans, and the husband of one of them died, [the widow] is free since she is the [the yavams] wifes sister.
2) Similarly in the case of two deaf-mute [sisters].
3) [If the two brothers were married to two sisters one of whom was] of age and [the other] a minor, if the husband of the minor died, the minor is free since she is the [the yavams] wifes sister.
4) If the husband of the elder sister died:
a) Rabbi Eliezer says the minor is to be instructed to make a declaration of refusal against him.
b) Rabban Gamaliel says: If she made a declaration of refusal, then she did so; but if [she did] not, let her wait until she is of age and then she will be free since she is the [the yavams] wife’s sister.
c) Rabbi Joshua says: Woe to him because of his wife and woe to him because of his brothers wife! He must allow his wife to go by [giving her] a get, and [he must let go] his brothers wife through halitzah.
Section one: The marriage of these two brothers to these two sisters is of rabbinic status, since they were married off by their brothers or mother. We might have thought that since this was so, the sister whose husband died needs halitzah from the yavam, even though the yavam is married to her sister (and hence yibbum is forbidden). This is because the ties created by the necessity of halitzah are biblical whereas the marriage is only rabbinic. The mishnah teaches that just as in a case of regular marriage where the widow is exempt from yibbum and halitzah, so too here she is exempt.
Section two: The marriage of a girl deaf-mute is also only of rabbinic status, since she was legally considered by the rabbis to be lacking the required intelligence to contract marriage. This case is similar to the previous case because the marriage of both women is only of rabbinic status.
Section three: In this case two brothers were married to two sisters, one of whom was of majority age and hence her marriage was of biblical status (deoraita) and one of whom was a minor, whose marriage was only of rabbinic status (derabbanan). If the husband of the minor died, she certainly does not need yibbum or halitzah from the other husband, because he is married to her sister. Since the marriage to the older sister is deoraita, there is no question about this case.
Section four: The more difficult and controversial case is if the elder sisters husband dies. She now needs yibbum or halitzah from a deoraita marriage, but her sister is already married, at least rabbinically to the yavam. If the yavam were to have halitzah with the older sister, the younger sister to whom he is married would become forbidden to him as his halutzahs sister.
Rabbi Eliezer says that in order to get out of this problematic situation, the court instructs the younger sister to make a declaration of refusal, thereby annulling the marriage and making it possible for the elder sister to have yibbum. According to Rabbi Eliezer, the ties that the older sister has to the yavam (the younger sisters husband) makes the younger sister forbidden to her husband. Therefore the only solution is for the younger sister to make a declaration of refusal.
Rabban Gamaliel disagrees with Rabbi Eliezer and does not hold that the ties to the older sister make the younger sister forbidden. Therefore, the younger sister can either make a declaration of refusal immediately, or she may remain with her husband and the older sister can wait until the younger sister reaches majority age at which time she, the older sister, becomes exempt from yibbum and halitzah because her yavam is biblically married to her sister.
Rabbi Joshua says that in this case the husband/yavam will lose both his wife and his yevamah. Rabbi Joshua agrees with Rabbi Eliezer that his minor wife is now forbidden to him due to the biblical ties that he has with her sister. However, Rabbi Joshua disagrees with Rabbi Eliezers strategy of teaching her to make a declaration of refusal. This is because Rabbi Joshua holds that declarations of refusal are not desirable and that one should distance himself from them as much as possible. The yavam cannot have yibbum with the yevamah since she is now the sister of his divorcee. Therefore he must have halitzah with her. In this way, he loses both women.
Question for Further Thought:
· What is the difference between the first case and the last case? Why in one does she not require halitzah but in the other she might?