רַבִּי שִׁמְעוֹן אוֹמֵר: בִּיאָתָהּ אוֹ חֲלִיצָתָהּ שֶׁל אַחַת מֵהֶם פּוֹטֶרֶת צָרָתָהּ, חָלַץ לְבַעֲלַת מַאֲמָר לֹא נִפְטְרָה צָרָה. כְּנָסָהּ וָמֵת, וְאַחַר כָּךְ נוֹלַד לוֹ אָח, אוֹ שֶׁנּוֹלַד לוֹ אָח וְאַחַר כָּךְ כְּנָסָהּ וָמֵת – שְׁתֵּיהֶן פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּיבּוּם.

Rabbi Shimon says: Intercourse or ḥalitza with one of them, i.e., the wife of the second brother, exempts her rival wife , but if he performed ḥalitza with the one who received the levirate betrothal, then her rival wife , i.e., the wife of the second brother, is not thereby exempt, since possibly levirate betrothal does not have the same strength as marriage. If the second brother married his deceased brother’s wife and then died himself, and afterward a brother was born, or if a brother was born and then he married her and died, the two wives are both exempt from ḥalitza and levirate marriage. In this case, one was the wife of a brother with whom he did not coexist and the other her rival wife.

כְּנָסָהּ וְנוֹלַד לוֹ אָח, וְאַחַר כָּךְ מֵת – שְׁתֵּיהֶן פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּיבּוּם, דִּבְרֵי רַבִּי מֵאִיר. וְרַבִּי שִׁמְעוֹן אוֹמֵר: הוֹאִיל וּבָא וּמְצָאָהּ בְּהֶיתֵּר, וְלֹא עָמְדָה עָלָיו שָׁעָה אַחַת בְּאִיסּוּר – מְיַיבֵּם לְאֵיזוֹ מֵהֶן שֶׁיִּרְצֶה, אוֹ חוֹלֵץ לְאֵיזוֹ מֵהֶן שֶׁיִּרְצֶה.

The baraita continues: If he married his yevama and then a brother was born, and then he died, both the wife of the first deceased brother and the original wife of the yavam are exempt from ḥalitza and levirate marriage; this is the statement of Rabbi Meir. And Rabbi Shimon says: Since the third brother came and found her in a permitted state, and she was never for a moment prohibited to him, as when he was born she was already the wife of the second brother, who was still alive, he therefore takes whichever he wishes in levirate marriage, or performs ḥalitza with whichever he wishes.

הָא בָּבָא דְּסֵיפָא לְמַאן קָתָנֵי לָהּ? אִילֵימָא לְרַבִּי מֵאִיר קָתָנֵי לָהּ – מִכְּדִי, לָא שָׁנֵי לֵיהּ לְרַבִּי מֵאִיר בֵּין יִיבֵּם וְאַחַר כָּךְ נוֹלַד, בֵּין נוֹלַד וְאַחַר כָּךְ יִיבֵּם – לִעַרְבִינְהוּ וְלִתְנִינְהוּ.

The Gemara clarifies: The section of the latter clause of the baraita , which refers to the case of a brother born after the levirate marriage, according to whom is it taught? If we say it is taught for the purpose of clarifying the opinion of Rabbi Meir, it does not make sense, since it makes no difference to Rabbi Meir whether the levirate marriage preceded the birth or the birth preceded the levirate marriage. In his opinion under both circumstances she is the wife of a brother with whom he did not coexist. And if this were in fact taught for the purpose of clarifying his opinion it should have combined the cases and taught them together.

אֶלָּא, לָאו רַבִּי שִׁמְעוֹן, וּבְיִיבֵּם וְאַחַר כָּךְ נוֹלַד – פָּלֵיג, בְּנוֹלַד וְאַחַר כָּךְ יִיבֵּם – לָא פָּלֵיג, שְׁמַע מִינָּהּ.

Rather, is it not that the latter segment was meant to clarify the opinion of Rabbi Shimon, since the different parts of the baraita enumerate different possibilities? And Rabbi Shimon disagrees in the case when the brother first performed levirate marriage and afterward his brother was born, but he does not disagree in the case where the younger brother was born and afterward the second brother performed levirate marriage. The Gemara summarizes: Conclude from this that Rabbi Shimon disagrees only here, as Rav Pappa explained.

אֲמַר מָר: עָמַד הַשֵּׁנִי לַעֲשׂוֹת מַאֲמָר בִּיבִמְתּוֹ, וְלֹא הִסְפִּיק לַעֲשׂוֹת מַאֲמָר בִּיבִמְתּוֹ עַד שֶׁנּוֹלַד לוֹ אָח, וָמֵת – רִאשׁוֹנָה יוֹצְאָה מִשּׁוּם אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ, וּשְׁנִיָּה – אוֹ חוֹלֶצֶת אוֹ מִתְיַיבֶּמֶת. מַאי עָמַד וּמַאי לֹא הִסְפִּיק? אִי עֲבַד – עֲבַד, וְאִי לֹא עֲבַד – לָא עֲבַד!

§ The Gemara proceeds to discuss the baraita itself. The Master said: The second was about to perform levirate betrothal with his yevama , but did not manage to perform levirate betrothal with his yevama before his brother was born, and then the second brother died. The first woman goes out and is free to remarry without ḥalitza or levirate marriage due to the fact that she was the wife of a brother with whom the third brother did not coexist, and the second woman performs ḥalitza or enters into levirate marriage. The Gemara asks: What is the meaning of the phrase: Was about to, and what is the meaning of: Did not manage to perform levirate betrothal? The important issue is not his intention but his actions. If he did it, he did it; and if he did not do it, he did not do it.

אֶלָּא: עָמַד – מִדַּעְתָּהּ, וְלֹא הִסְפִּיק מִדַּעְתָּהּ, אֶלָּא בְּעַל כָּרְחָהּ. וּדְלֹא כְּרַבִּי דְּתַנְיָא: הָעוֹשֶׂה מַאֲמָר בִּיבִמְתּוֹ שֶׁלֹּא מִדַּעְתָּהּ, רַבִּי אוֹמֵר: קָנָה, וַחֲכָמִים אוֹמְרִים: לֹא קָנָה.

Rather, the correct interpretation is: Was about to means that he was about to perform levirate betrothal with her consent. Did not manage means that he did not manage to perform it with her consent, but instead did it against her will. Consequently, it is understood that this baraita is not in accordance with the opinion of Rabbi Yehuda HaNasi, as it is taught in a baraita : With regard to one who performs levirate betrothal with his yevama without her consent, Rabbi Yehuda HaNasi says: He acquired her and the betrothal is fully valid, like a consensual levirate betrothal with his yevama ; and the Rabbis say: He did not acquire her.

מַאי טַעֲמָא דְּרַבִּי? גָּמַר מִבִּיאָה דִּיבָמָה, מַה בִּיאָה דִּיבָמָה בְּעַל כָּרְחָהּ, אַף קִדּוּשִׁין דִּיבָמָה בְּעַל כָּרְחָהּ. וְרַבָּנַן גָּמְרֵי מִקִּדּוּשִׁין דְּעָלְמָא, מַה קִּדּוּשִׁין דְּעָלְמָא – מִדַּעְתָּהּ, אַף קִדּוּשִׁין דִּיבָמָה – מִדַּעְתָּהּ.

The Gemara explains: What is the reason for Rabbi Yehuda HaNasi’s opinion? He learned this from the case of a yavam engaging in intercourse with a yevama . Just as even non-consensual intercourse with the yevama renders her his wife, as the matter does not require her consent, so too, betrothal of a yevama can be non-consensual. But the Rabbis learned from the halakhot of betrothal in general; just as betrothal in general requires consent by the woman, so too, betrothal of a yevama for purposes of levirate marriage requires consent.

בְּמַאי קָמִיפַּלְגִי? מָר סָבַר: מִילֵּי דִּיבָמָה מִמִּילֵּי דִּיבָמָה הֲוָה לֵיהּ לְמֵילַף, וּמָר סָבַר: מִילֵּי דְּקִדּוּשִׁין מִמִּילֵּי דְּקִדּוּשִׁין הֲוָה לֵיהּ לְמֵילַף.

The Gemara explains: With regard to what principle do Rabbi Yehuda HaNasi and the Rabbis disagree? One Sage, Rabbi Yehuda HaNasi, holds that halakhic matters concerning yevamot must be inferred from matters concerning yevamot and not from other areas of halakha . And one Sage, the Rabbis, holds that halakhic matters concerning levirate betrothal must be inferred from matters concerning betrothal.

עָשָׂה בָּהּ מַאֲמָר וְאַחַר כָּךְ נוֹלַד לוֹ אָח, אוֹ שֶׁנּוֹלַד לוֹ אָח וְאַחַר כָּךְ עָשָׂה בָּהּ מַאֲמָר, וּמֵת, רִאשׁוֹנָה יוֹצְאָה מִשּׁוּם אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ, וּשְׁנִיָּה חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת. רַבִּי שִׁמְעוֹן אוֹמֵר: בִּיאָתָהּ אוֹ חֲלִיצָתָהּ שֶׁל אַחַת מֵהֶן פּוֹטֶרֶת צָרָתָהּ.

The Gemara clarifies another segment of the baraita . It is taught: If the second brother performed levirate betrothal with her, and afterward his brother was born, or if his brother was born and then he performed levirate betrothal and died, the first woman goes out and is free to remarry because she is the wife of a brother with whom he did not coexist, and the second, the wife of the second brother, performs ḥalitza but does not enter into levirate marriage. Rabbi Shimon says: Intercourse or ḥalitza with one of them exempts her rival wife.

רַבִּי שִׁמְעוֹן אַהַיָּיא קָאֵי? אִילֵימָא אַנּוֹלַד לוֹ אָח וְאַחַר כָּךְ עָשָׂה בָּהּ מַאֲמָר – הָא אָמְרַתְּ בְּנוֹלַד וּלְבַסּוֹף יִיבֵּם לָא פָּלֵיג רַבִּי שִׁמְעוֹן! אֶלָּא – אַעָשָׂה בָּהּ מַאֲמָר וְאַחַר כָּךְ נוֹלַד לוֹ אָח.

The Gemara asks: To which case is Rabbi Shimon referring? If we say that he is referring to the case when his brother was born and then he performed levirate betrothal with her, didn’t you already say that Rabbi Shimon did not dispute the case where the brother was born and then ultimately he performed a levirate marriage, and she would be forbidden as the wife of a brother with whom he did not coexist. Rather, one must say that Rabbi Shimon disputed the case where he performed levirate betrothal with her and afterward his brother was born.

חָלַץ לְבַעֲלַת מַאֲמָר לֹא נִפְטְרָה צָרָה, מַאי טַעֲמָא? מִשּׁוּם דַּהֲוַאי צָרָה וַדַּאי וּבַעֲלַת מַאֲמָר סָפֵק, וְאֵין סָפֵק מוֹצִיא מִידֵי וַדַּאי.

Later in the baraita it is taught: If the third brother performed ḥalitza with the wife of the first brother, to whom the second brother performed levirate betrothal, her rival wife is not exempt. The Gemara clarifies: What is the reason for this? It is because the rival wife , the widow of the second brother, has a definite legal status that requires an act to free her to remarry, as she is the wife of a brother with whom he did coexist, whereas the widow of the first brother with whom the second brother performed levirate betrothal had only an uncertain legal status, as it is not clear if she is to be considered truly the wife of the second brother by means of the levirate betrothal or not. And the principle is that an uncertainty does not override a certainty. Therefore, even if the third brother performs ḥalitza , since the status of the first woman’s obligation is uncertain, the status of the ḥalitza itself is uncertain, as it is possible that she did not require ḥalitza at all. Consequently, this ḥalitza is not sufficient to exempt her rival wife. This teaches that he must perform ḥalitza or levirate marriage with the woman who is definitely obligated, and then the other will be exempt.

יְתֵיב רַב מְנַשֶּׁה בַּר זְבִיד קַמֵּיהּ דְּרַב הוּנָא, וִיתֵיב וְקָאָמַר: מַאי טַעֲמָא דְּרַבִּי שִׁמְעוֹן? מַאי טַעֲמָא דְּרַבִּי שִׁמְעוֹן?! כְּדַאֲמַר טַעֲמָא: הוֹאִיל וּבָא וּמְצָאָהּ בְּהֶיתֵּר, וְלֹא עָמְדָה עָלָיו שָׁעָה אַחַת בְּאִיסּוּר!

Rav Menashe bar Zevid sat before Rav Huna. He sat and said: What is the reason that Rabbi Shimon allows the third brother to marry the wife of his brother with whom he did not coexist where she was taken in levirate marriage prior to his birth? The Gemara also wonders: What is Rabbi Shimon’s reason? The reason is as he stated in that same baraita : Since the third brother came and found her in a permitted state, and she was never for a moment prohibited to him he may perform levirate marriage with her.

אֶלָּא: מַאי טַעֲמָא דְּרַבָּנַן? אֲמַר קְרָא ״וּלְקָחָהּ לוֹ לְאִשָּׁה וְיִבְּמָהּ״ – עֲדַיִין יִבּוּמִים הָרִאשׁוֹנִים עָלֶיהָ. אֶלָּא, הָא דִּתְנַן: כְּנָסָהּ – הֲרֵי הִיא כְּאִשְׁתּוֹ לְכָל דָּבָר, וְאָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: מְלַמֵּד

Rather, the question was as follows: Rabbi Shimon gave such a persuasive explanation of his opinion that it raises the question: What is the reason for the Rabbis’ opinion? The Gemara answers that the verse states: “Her brother-in-law will… take her to him to be his wife and consummate the levirate marriage [ veyibbema ]” (Deuteronomy 25:5). This means that the first levirate bond is still upon her. Even after she is taken as a wife by the second brother, her earlier status as wife of her late first husband is still in effect. The Gemara challenges this: But what about that which we learn in a mishna (38a): If he took his yevama in marriage as his wife, then her legal status is that of his wife in every sense; and Rabbi Yosei bar Ḥanina said: This teaches