Yerushalmi Yevamot 4:2 ירושלמי יבמות ד׳:ב׳

MISHNAH: If somebody marries his sister-in-law but she turned out to have been pregnant and gave birth. If the child is alive, [the levir] has to divorce her and they must bring a sacrifice⁴¹His marriage to her is incestuous; she is forbidden to him as sister-in-law with children. The sacrifice is a purification sacrifice, חַטָּאת (Lev. 4). One has to assume that the marriage was entered into without any suspicion of pregnancy.. If the child is not alive, he may keep her. If it is doubtful whether [the child is] a nine-month child of the first [brother] or a seven-month of the second, he has to divorce her, the child is legitimate, and they are obligated to bring a reparation offering for an uncertain case⁴²His marriage to her is possibly incestuous; he must divorce her. A child is either a bastard or not a bastard; legally no children exist that possibly are bastards. The reparation offering is the אָשָּׁם required if it is uncertain whether a sin was committed or not (Lev. 5:17–19)..

HALAKHAH: Rebbi Yose⁴⁴He cannot be either the late Amora or the Tanna; it seems that he is the Babylonian who in the Babli is called Rav Assi. The Babli (Keritut17b) by implication attributes to Rav Assi the opinion that a reparation offering is due if the true situation cannot be ascertained. said, in any case where the true fact can be ascertained, one does not have to bring a reparation offering because of doubt. How is that? If there were before him two olive-sized pieces, one of suet⁴⁵From the back part of a domestic animal. Since suet of a sacrifice has to be burned on the altar, it is forbidden as food from all animals that can be sacrifices (Lev. 7:27). Eating an olive-sized piece of suet inadvertently requires a purification offering. and one of fat⁴⁶Fat permitted as food., he ate one of them and the other is locked up.He says, since I could determine the true fact if I would find the key, does one have to bring a reparation offering in this case of doubt⁴⁷Theoretically, the true situation could be ascertained, whether a purification offering is due or no sin has been committed, but practically it cannot. Does one follow theory or practice?? Let us hear from the following: “If somebody marries his sister-in-law but she turned out to have been pregnant”, as long as it is not known whether the child lives or does not live, does he have to bring a reparation offering because of the doubt⁴⁸No, the Mishnah requires them to wait until the eventual necessity for a purification offering is decided.? This means that he does not bring.

Rav said, in any case where the true fact can never be established, one does not have to bring a reparation offering for the doubt⁵⁰The same statement in Bikkurim2:8, Babli Keritut 17b. {The commentators who did not recognize that Yerushalmi אֵיפשר = Babli אי אפשר had to rewrite the text; cf. Peah, Chapter 7, Note 170.}. How is that? If there were before him two olive-sized pieces, one of suet⁴⁵From the back part of a domestic animal. Since suet of a sacrifice has to be burned on the altar, it is forbidden as food from all animals that can be sacrifices (Lev. 7:27). Eating an olive-sized piece of suet inadvertently requires a purification offering. and one of fat⁴⁶Fat permitted as food., he ate one of them, and then a raven ate the other. Since he cannot ascertain the true fact, one does not have to bring a reparation offering for this doubt. But if the raven ate first and then he ate, since he could have ascertained the true fact⁵¹By having the piece analyzed by a competent butcher., one has to bring a reparation offering for the doubt. But did not Rav say, only if he made sure that it certainly was suet⁵²The Babli, Keritut 17b, quotes a similar statement in the name of Ḥiyya bar Rav, that the offering for a doubt is due only if there were two pieces, one permitted, one forbidden, whose history can be traced and their true status ascertained. But if there is only one piece whose status is indeterminate (the case of Rebbi Yose, Rav Assi), the offering for a doubt does not apply.? Even though Rav said, only if he made sure that it certainly was suet, he agrees here that he could have ascertained the true fact. A baraita disagrees with Rav: “As Rebbi Eleazar says, one must bring a reparation offering for the doubt of suet⁵³Bikkurim 2:8, quoted in Babli Keritut 17b. The animal is the koy, for which it is impossible to ascertain whether it is domestic (whose suet is forbidden) or wild (whose suet is permitted)..” What does Rav do with that? They⁵⁴The majority of Sages disagree with the Tanna R. Eleazar ben Shamua. disagree with the words of Rebbi Eleazar. A baraita disagrees with Rav⁵⁵Similar texts are in Mishnah Keritut 5:4; Tosephta Keritut 3:1. Neither of these texts is identical with the baraita quoted here.: “If there were both a piece of profane [meat] and a piece of sacrificial [meat], he ate one of them and it is not known which one, he brings a reparation offering for the doubt. If he [then] ate the second piece, he brings a reparation offering for a certain transgression⁵⁶It is assumed that the person who ate is not a Cohen and commits a sin by eating sacrificial meat. The reparation offering is for unauthorized use of sacred property, Lev. 5:14–16. Both texts quoted in Note 55 require two sacrifices, one a reparation sacrifice for the use of sacred meat, the other a purification sacrifice (Lev. 4:27–35) for the sin.. If he ate the first piece and another person came and ate the second, each one brings a reparation offering for the doubt.” One understands that the first brings a reparation offering for the doubt. Why the second? Rebbi Yose said, explain it that the piece was large, he ate half of it and left the other half⁵⁷It is impossible to explain that both people ate from one large piece since that is the case in which Rav denies that a reparation offering is due. If must be that one piece was eaten completely but of the other enough is left that it could be analyzed. (This is the explanation rejected by קרבן העדה).. A Mishnah disagrees with Rav⁵⁸This quote is the reason the entire discussion is placed here.: “If it is doubtful whether [the child is] a nine-month child of the first [brother] or a seven-month of the second, he has to divorce her, the child is legitimate, and they are obligated for a reparation offering for the doubt.” Here it is impossible to ascertain the true fact and they are obligated for a reparation offering for the doubt! Rebbi Yose said, Rebbi Ze‘ira explained it before Rebbi Ḥiyya bar Abba; Rebbi Ḥizqiah, Rebbi Ḥiyya bar Abba: Rebbi Ze‘ira explained it before us. Since he could just have touched her⁵⁹In rabbinic Hebrew, the expression הערה in Lev. 20:17 is taken to mean “touched (the female genital by the male genital)”, not the etymologically more likely “bared”. Mishnah 6:1 will explain that the biblically required act of validation of the marriage with the sister-in-law is the touching of the two genitals. They could have performed this act without ejaculation to be married (and make the brother financially responsible for the sister-in-law) and then waited the prescribed 90 days to ascertain the paternity of an eventual child. and then separated, he could have known whether it is his or the other’s, it is as if he could have ascertained the true fact!

How do we hold⁶⁰Here starts the discussion of the last sentence of the Mishnah, how xan a child be a nine-months child or a seven-months child with equal probabilities.? If he came to her immediately after her husband’s death, and the fetus was recognized after two months, one should have stated: A nine-month child of either one of them or a seven-month of either one of them! But it may be that he came to her after two months and the fetus was recognized after three months⁶¹Since a widow should not be married in levirate earlier than 3 months after the husband’s death (Mishnah 4:11) in order to avoid situations like the one discussed in the Mishnah, it follows that there are pregnancies that are recognized only after three months., one should have stated: The sister-in-law should not perform ḥalîṣah or be married in levirate until after five months! But it must be that he came to her after 40 days and the fetus was recognized after 50 days. That would be complete months for [a child of] the first [brother] and incomplete ones for the second⁶²If the child was born exactly nine months after the death of the husband, then this would be 7 months and 10 days after the levir had intercourse with her.. This implies that a woman may give birth after full months. This implies that there are two creations⁶³Certain regular pregnancies are terminated naturally during the seventh month; certain others only after 9 full months.. This implies that a woman may give birth after incomplete months. This implies that a woman may become pregnant repeatedly⁶⁴The Babli, Niddah 27 a, disagrees and holds that Jehudah and Ḥizqiah, children of Rebbi Ḥiyya, who were born 3 months apart, were twins; the one a seven-months child and the other a nine-months child.. This implies that a woman cannot become pregnant simultaneously from two men⁶⁵Since the Mishnah excludes the possibility that, even if there were twins, they could come from both brothers as fathers. In that case, according to Rav there would be no reparation offering for a doubt.. And it disagrees with the sermonizing rabbis, since the sermonizing rabbis say “the middleman” “from the orders of the Philistines”, from 100 prepuces of Philistines, that 100 prepuces of Philistines touched her⁶⁶Midrash Ruth 2(21), Midrash Samuel ed. Buber 20(4), Babli Soṭah 42b in the name of R. Joḥanan. These sermons identify (1) the Moabite Orpah, the daughter-in-law of Noemi who did not follow her to Bethlehem, with the Philistine Haraphah (2S. 21:22), and (2) Goliat mentioned in 2S. 21 with the warrior in 1S. 17:23. The latter is introduced in the written text as אִישׁ הַבֵּנַיִם מִמַּעַרְוֹת פְּלִשׁתִּים interpreted in a slightly pornographic way as “a man [created] in between the touchings (cf. Note 59) of the Philistines”, explaining that Orpah, once she had decided not to become Jewish, went to the enemies of the Jews, the Philistines of Gath, and slept with 100 of their warriors (מִמַּעַרְוֹת = מִמֵּאָה הֶעָרוֹת) in one night to create a super-warrior; in the words of R. Joḥanan, 100 fathers and one mother. One can construct such a sermon only if all gutturals had become silent and pataḥ, qāmeṣ assimilated to one another.. Rebbi Mattaniah said, there is no disagreement. As long as the semen is not spoiled, a woman can become pregnant from several men simultaneously. After the semen is spoiled, a woman cannot become pregnant from several men simultaneously.

From where the two creations? Rebbi Ze‘ira in the name of Rebbi Huna: “He created⁶⁸Gen. 2:7. In the creation of Man, it is written וייצר, in that of the animals, 2:19, only ויצר. The two letters י symbolize the two creations. A more detailed exposition of this sermon is in Gen. rabba 14(2).”, a creation for seven and a creation for eight. If he was created for seven but born at eight, he lives; so much more if [born] by nine. If he was created for nine and born at eight, he does not live. If he was created for nine and born at seven? Come and see, if he does not live at eight, so much less at seven! They⁶⁹Some Greek speakers. asked before Rebbi Abbahu. From where that a seven-month baby lives? he said to them, from yours I am giving to you: ζῇ τὰ ἑπτὰ, ζῇ τὰ ἑπτὰ⁷⁰“It lives at seven, it lives at seven”. In all other sources, Gen. rabba14(2), 20(13), Tanḥuma Bemidbar 18, Tanḥuma Buber Bemidbar 21, Bemidbar rabba 4(3), the reading seems to be זיטא אפטא איטא אוכטא for the interpretation of which S. Lieberman (יוונית ויוונות בארץ ישׂראל, Jerusalem 1962, p. 209) prefers the reading of A. Crusius: ζῇ τὰ ἑπτὰ <μᾶλλον> ἤ τὰ ὀκτώ “the life-expectancy of that of seven [is better than] that of eight,” a medical maxim. The formulation is a pun on the Hellenistic numeral values of letters, zetaζʼ = 7, eta η’ = 8..

If the uncertain [son] comes to take his part in his father’s⁷¹The putative father, his mother’s first husband. [inheritance]. one says to him, the other one is your father. If the levir comes to take his part in his brother’s [inheritance], one says to him, that one is his son. How is that? They compromise between themselves and split the property of the deceased⁷²The Babli, 37b, notes that the inheritance of the deceased brother is “money which is in doubt and money in doubt one splits in the middle”. The Yerushalmi has no explicit rule on how the compromise is reached.. One finds, compromise with his brother is loss to the brothers; competition between the brothers is catastrophy for the brothers⁷³The compromise splits the inheritance between the uncertain son and his uncertain father; this excludes the other brothers from the inheritance of their childless brother The rules of inheritance in the cases of ḥalîṣah and levirate are spelled out in Mishnaiot 3–4. If there is no compromise, nobody gets anything.. If the old man dies, one finds that certain sons and an uncertain grandson come⁷⁴Inheritance of the grandfather goes to his children and grandchildren per stirpes. If the grandson cannot prove who his father was, he cannot inherit in the presence of sons orgrandsons of known fathers.. If the uncertain [son] dies there exists a certain son of his father’s brother and an uncertain mother⁷⁵The mother is certain but she does not inherit. The sons of the levir inherit either as brothers or as cousins of the deceased. The other sons of the mother could inherit his part from his mother’s estate only if there were no relatives from the family of the possible fathers.. If one of the brothers dies, there is a certain son and an uncertain son of a brother⁷⁶The uncertain son cannot claim a part in the inheritance of a childless uncle since he cannot prove whether he should get the full part of the first husband or a share with the other brothers of the levir.. If the mother of the uncertain [son] dies, there is a certain son and an uncertain husband⁷⁷The levir cannot inherit since he cannot prove that the woman was his legal wife.. If first the uncertain [son] dies and after that his mother, a son of the mother’s brother is certain but the husband uncertain⁷⁷The levir cannot inherit since he cannot prove that the woman was his legal wife.. If the levir dies and the uncertain [son] comes to take his part in his father’s inheritance, if the first one was poor, they tell him, that one is your father. If he was rich, the tell him, we all are brothers, sons of his brother. Come and let us inherit our father’s part and the part of our father’s brother⁷⁸In the Babli, 37b, there is a serious disagreement whether the inheritance of the first husband remains separate after the levir and the uncertain son did compromise (Note 72). In practice, the Babli holds that the uncertain son cannot inherit more than what he got under the compromise since he cannot prove that he was the levir’s son..

It was stated⁷⁹Tosephta 6:2, quoted in Babli 37a.: “The first son could be High Priest, any second son possibly is a bastard⁸⁰If the first child is the son of the first husband, he certainly is in order. If he is the son of the levir, the first husband died childless and the levirate was legitimate. But any second child is the issue of a union which possibly is incestuous and punishable by divine extirpation.. Rebbi Eliezer ben Jacob said, there is no such thing as a possible bastard.⁸¹He is considered a bastard, permitted to marry a bastard partner, since he cannot marry a legitimate Israel partner; cf. Qiddushin 4:3.” Rebbi Eliezer ben Jacob agrees in cases of doubt of Samaritans and desecrated persons⁸²As noted before, Samaritans have different interpretations of incest and marriage laws; a child of a marriage with a Samaritan is not automatically excluded but subject to inquiry. The text speaks of Samaritans since in talmudic times they were the only remnants of Sadducee traditions. {Today, of the other tribes of Sadducee traditions, Ethiopians have accepted rabbinic rules and Karaites are legitimate marriage partners if they accept rabbinic rules.}
“Desecrated” children are children of the marriage of a Cohen with a divorcee or a prostitute; such a marriage is not incestuous and stringent exclusionary rules do not apply.. This refers to what we have stated there: “Ten classes returned from Babylonia.⁸³Mishnah Qiddushin 4:1: “Ten classes returned from Babylonia, Cohanim, Levites, Israel, desecrated, proselytes, freed slaves, bastards, Gibeonites, people of unknown paternity, and foundlings. Cohanim, Levites, Israel may marry one another. Levites, Israel, desecrated, proselytes, and freed slaves, may marry one another. Proselytes, freed slaves, bastards, Gibeonites, people of unknown paternity, and foundlings, may marry one another.”
For R. Eliezer ben Jacob, bastards, people of unknown paternity, and foundlings, all form one group.
In Mishnah Ketubot 1:8, Rabban Gamliel and R. Eliezer hold that the unmarried mother of a child of unknown paternity is believed if she asserts that the father was one of the first six categories (or a Gentile). For them, the special category of “child of unknown paternity” does not exist since the child inherits the status of his mother.” In the opinion of Rebbi Eliezer ben Jacob, eight. In the opinion of Rabban Gamliel and Rebbi Eliezer, nine. In the opinion of the rabbis, ten.