משנה: הַמְגָרֵשׁ אֶת הָאִשָּׁה וְהֶחֱזִירָהּ מוּתֶּרֶת לְיָבָם וְרִבִּי לִיעֶזֶר אוֹסֵר. וְכֵן הַמְגָרֵשׁ אֶת הַיְּתוֹמָה וְהֶחֱזִירָהּ מוּתֶּרֶת לְיָבָם וְרִבִּי לִיעֶזֶר אוֹסֶר. קְטַנָּה שֶּׁהִשִּׂיאָהּ אָבִיהָ וְנִתְגָּֽרְשָׁה כִּיתוֹמָה בְּחַיֵי הָאָב הֶחֱזִירָהּ אֲסוּרָה לְיָבָם. וּמוֹדִין חֲכָמִים לְרִבִּי לִעֶזֶר בִּזְמַן שֶׁגֵּירְשָׁהּ קְטַנָּה וְהֶחֱזִירָהּ קְטַנָּה מִפְּנֵי שֶׁהָיוּ גֵירוּשֶׁיהָ גֵירוּשִׁין גְּמוּרִין וְלֹא הָֽיְתָה חֲזָרָתָהּ גְּמוּרָה. אֲבָל אִם גֵּירְשָׁהּ קְטַנָּה וְהֶחֱזִירָהּ גְּדוֹלָה אוֹ שֶׁגִּידְּלָהּ תַּחְתָּיו מוּתֶּרֶת לְיָבָם. MISHNAH: If somebody divorced his wife and later took her back, she is permitted to the levir but Rebbi Eliezer forbids her73The second marriage annuls the prior divorce. R. Eliezer holds that she remains forbidden, even if the husband dies childless, since she was forbidden as his brother’s divorcee, as explained in the Halakhah. The same explanation is given in the Yevamot.109a">Babli, 109a.. Similarly, if somebody divorced an orphan girl and took her back, she is permitted to the levir but Rebbi Eliezer forbids her73The second marriage annuls the prior divorce. R. Eliezer holds that she remains forbidden, even if the husband dies childless, since she was forbidden as his brother’s divorcee, as explained in the Halakhah. The same explanation is given in the Yevamot.109a">Babli, 109a.. If an underage girl who was married off by her father was divorced, she is like an orphan during her father’s lifetime74She is emancipated from her father’s power by her marriage. Since the father has the right to marry off his underage daughter, both betrothal and divorce are valid by biblical standards. But since the remarriage was by an underage girl no longer under tutelage but unable to perform legal acts by reason of her age, everybody agrees that her rabbinic marriage cannot lift the biblical prohibition of the brother’s divorcee.. If she was taken back, she is prohibited to the levir.
75This Mishnah is not in the Babli nor in most independent Mishnah mss. The Sages agree with Rebbi Eliezer in case he divorced her as a minor and took her back as a minor, since her divorce is a total divorce but her return was not complete. But if he divorced her as a minor and took her back as an adult or she became an adult while married to him76Since they live together with the idea of being married, the first intercourse after she reaches the age of 12 years makes her marriage valid by biblical standards., she is permitted to the levir.
הלכה: וּמוֹדִין חֲכָמִים כול׳. מַאי טַעֲמָא דְּרִבִּי לִעֶזֶר. מִפְּנֵי שֶׁעָֽמְדָה עָלָיו בְּאִיסּוּר שָׁעָה אַחַת. מוֹדִין חֲכָמִים לְרִבִּי לִעֶזֶר בִּקְטַנָּה שֶׁהִשִּׂיאָהּ אָבִיהָ וְנִתְגָּֽרָשָׁה שֶׁהִיא כִיתוֹמָה בְּחַיֵי אָבִיהָ. קִידּוּשֶׁיהָ וְגֵירוּשֶׁיהָ תוֹרָה. חֲזָרָתָהּ אֵינָהּ תּוֹרָה. HALAKHAH: “The Sages agree,” etc. What is Rebbi Eliezer’s reason? That she was forbidden to him for an hour73The second marriage annuls the prior divorce. R. Eliezer holds that she remains forbidden, even if the husband dies childless, since she was forbidden as his brother’s divorcee, as explained in the Halakhah. The same explanation is given in the Yevamot.109a">Babli, 109a.. 77Tosephta 13:5. The Sages agree with Rebbi Eliezer about the underage girl who was married off by her father and divorced, that she is like an orphan during her father’s lifetime. Her betrothal and divorce were by biblical standards; her remarriage was not by biblical standards.
צָרָתָהּ מַהוּ. רַב אָמַר. צָרָתָהּ אֲסוּרָה. רִבִּי יוֹחָנָן אָמַר. צָרָתָהּ אֲסוּרָה. רִבִּי שִׁמְעוֹן בֶן לָקִישׁ אָמַר. צָרָתָהּ מוּתֶּרֶת. אָמַר רִבִּי לָֽעְזָר. חוֹזְרִת בֵּין עַל רַבָּנִן דְּהָכָא בֵּין עַל רַבָּנִן דְּתַמָּן לָא אַשְׁכָּחִית בַּר נַשׁ דִּכְװָתִי אֶלָּא רִבִּי שִׁמְעוֹן בֶן לָקִישׁ דּוּ אָמַר. צָרָתָהּ מוּתֶּרֶת. רַב הַמְנוּנָא הֲוָה יְתִיב קוֹמֵי רַב אָדָא בַּר אַחֲוָה. אָמַר. צָרָתָהּ מַהוּ. אָמַר לֵיהּ. מוּתָּר. אָמַר. גֵּירוּשִׁין. אָמַר. אֲסוּרָה. אָמַר. חָֽזְרָיו. אָמַר רַבָּא בַּר מָמָל. מִסְתַּבְּרָא כְּמָאן דְּאָמַר. צָרָתָהּ מוּתֶּרֶת. בְּרַם כְּמָאן דְּאָמַר. צָרָתָהּ אֲסוּרָה. מַה נַפְשֵׁךְ. צַד שֶׁקָּנָה בָהּ כְּנֶגְדוֹ אָסוּר בְּצָרָתָהּ וְצַד שֶׁלֹּא קָנָה בָהּ כְּנֶגְדוֹ הִתִּיר בְּצָרָה. אָמַר רִבִּי שַׁמַּי. וְכִי יֵשׁ מַה נַפְשֵׁךְ בָּעֲרָיוֹת. מַהוּ כְדוֹן. כָּל־יְבָמָה שֶׁאֵין כּוּלָּהּ לַחוּץ צַד הַקָּנוּי שֶׁבָּהּ נִידּוֹן מִשּׁוּם עֶרְוָה. וְעֶרְוָה פוֹטֶרֶת צָרָתָהּ. What is the status of her co-wife78The co-wife of the girl married off by her father, divorced, and remarried.? Rav said, her co-wife is forbidden. Rebbi Joḥanan said, her co-wife is forbidden. Rebbi Simeon ben Laqish said, her co-wife is permitted. Rebbi Eleazar said, I looked around at the rabbis here and at the rabbis there and did not find anybody agreeing with me except Rebbi Simeon ben Laqish who says, her co-wife is permitted.Rav Hamnuna was sitting before Rav Ada bar Ahava and said, what is the status of her co-wife? He said to him, she is permitted. He asked, divorce? He answered, forbidden79This is the case of the Mishnah.. He said, go around80Look for other opinions in the matter.. Rebbi Abba bar Mamal said, it is reasonable following him who said that her co-wife is permitted. But following him who said, her co-wife is forbidden, as you take it: The aspect he acquired in her makes the corresponding aspect forbidden in her co-wife, the aspect he did not acquire in her makes the corresponding aspect permitted in her co-wife81This text makes no sense. It seems that the correct text is the one quoted by Nahmanides (The wars of the Eternal on Alfasi, 37b in the Wilna edition): צַד שֶׁקָּנָה בָהּ כְּנֶגְדוֹ מוּתָּר בְּצָרָתָהּ וְצַד שֶׁלֹּא קָנָה בָהּ כְּנֶגְדוֹ הִתִּיר בְּצָרָתָהּ. “The aspect he acquired in her permits the corresponding aspect in her co-wife, the aspect he did not acquire in her was permitted in the corresponding aspect in her co-wife.” The argument is based on the doctrine that the marriage of an underage girl not arranged by her father results in partial acquisition of the girl by the husband. This doctrine is stated explicitly in the Yevamot.110b">Babli (110b, Yevamot.111a">111a) but not in the Yerushalmi. If the girl was married, then the prior divorce was annulled and both she and her co-wife are permitted to the levir. Is the girl was not married, then she is not a widow; the co-wife is the only widow and as such subject to the levirate.! Rebbi Shammai said, does one admit that kind of argument in matters of incest prohibitions? What about it? For any sister-in-law who is not totally outside [the family], the acquired aspect of her belongs to an incest prohibition and an incest prohibition forbids the co-wife82This argument supports the authorities Rav and R. Joḥanan. The Yerushalmi prohibits the levirate for the co-wife. The Yevamot.109a">Babli disagrees, 109a..
שְׁנֵי אַחִים נְשׂוּאִין כול׳. רִבִּי יוּדָן. כְּמַה דְאַתְּ אֲמַר תַּמָּן בָּעֵי. וְיַחֲלוֹץ צַד הַקָּנוּי שֶׁבָּהּ וְיִפְטוֹר צָרָתָהּ. אַף הָכָא. וְיַחֲלוֹץ צַד הַקָּנוּי שֶׁבַּקְּטַנָּה וְיַכְנִיס צָרָתָהּ. עַד דְּאַתְּ מַקְשֵׁי לֵיהּ עַל דְּרִבִּי לָֽעְזָר קַשִׁייָתָה עַל דְּרִבִּי לִעֶזֶר. לֵיתְנֵי יָכוֹל לְמִיקְשֵׁי לָהּ עַל דְּרִבִּי אֱלִיעֶזֶר. דְּרִבִּי לִיעֶזֶר שַׁמֻּתִּי. בֵּית שַּׁמַּי אוֹמְרִים. אֵין מְמֵאֵנִין אֶלָּא אֲרוּסוֹת. “Two brothers are married,” etc. Rebbi Yudan: One may ask what one asked there. Should he not perform ḥalîṣah for the acquired aspect in her and free her co-wife? So here, should he not perform ḥalîṣah for the acquired aspect in the underage girl and free her (co-wife) [sister]88Would it not be possible (or required) to apply the argument of R. Eleazar and R. Abba bar Mamal in the previous Halakhah to the situation here? It is difficult to see why one should try to make the situation more complicated than it already is. The text is at least partially corrupt.? Before you find Rebbi Eleazar difficult, you might find Rebbi Eliezer difficult! You cannot find this difficult for Rebbi Eliezer, since Rebbi Eliezer is a Shammaite89Ševi‘it 9:9, Terumot 5:4, Niddah.7b">Babli Niddah 7b. R. Eliezer became a student of Rabban Yoḥanan ben Zakkai; in no sense can he be considered an orthodox representative of the House of Shammai. and the House of Shammai say, one lets only the betrothed [women] repudiate90Yevamot 13:1:1-2:9" href="/Jerusalem_Talmud_Yevamot.13.1.1-2.9">Mishnah 1.?