Yevamot 95

Cuts both ways.

For many pages now, the Gemara has been discussing situations where a spouse is reported dead, the surviving spouse marries someone else, and then the first spouse returns alive. 

Back on Yevamot 87, we encountered a case in which a husband travels abroad and is reported dead. In that case, the mishnah ruled that if the husband returns alive after the wife has remarried, the woman is forbidden to both the first husband and the second. 

The mishnah under discussion on today’s daf concerns the opposite situation. It is now the woman who goes abroad, is reported dead, and the husband remarries only to later find his first wife alive. In that case, the mishnah rules that the husband can return to the original wife. Since men sleeping with other women while married does not constitute adultery, there has been a less serious violation in this case. And not only that, after returning to his first wife, the man can marry his second wife’s relatives. Normally, it’s forbidden to marry close relatives of one’s wife. But in this situation, the mishnah appears to take the position that the marriage to the second wife was impermissible to begin with, so it’s as if it never happened. 

The Gemara then offers a case in which the man with the reportedly dead wife does commit a more serious violation in his remarriage. Say it wasn’t just the wife who went abroad, but the wife and her sister’s husband. Both are then erroneously reported dead, and the husband back home decides to wed his (not actually dead) wife’s sister. A man may not marry his wife’s sister while his wife is still alive (even if he divorced her). The only case in which he may marry her sister is after she is dead. So now we have a case of a man who thinks his wife is dead and remarries — to her sister — and in this case the marriage actually is impermissible. Nonetheless, the Gemara says, he’s still allowed to return to his original spouse once the mistake has been exposed. 

Why the difference? Why is a woman who enters a forbidden relationship on the basis of misinformation about the death of her spouse not allowed to return to her marriage, while the man who does the same is permitted to rebuild his old life? The Gemara explains:

This is not comparable. With regard to his wife, who is forbidden to him by Torah law (if she committed adultery) intentionally, the sages decreed concerning her (that she is forbidden to him even if she did so) unwittingly. However, with regard to a wife’s sister, (even if the sister sins) intentionally, the wife is not forbidden to him by Torah law. If he did so unwittingly, the sages did not decree with regard to him. 

The difference hinges on a distinction we see repeatedly in the Talmud between laws that are derived from the Torah and those that are instituted by the rabbis. According to the Torah, a woman who committed adultery — which is, in essence, what the second woman did by marrying her sister’s husband based on the misperception that her husband had died — is subsequently forbidden to return to her husband. Because the Torah establishes that prohibition in a case where the woman acted intentionally, the rabbis rule that even if she did it by mistake, as is the case here, she is still forbidden from returning to her husband. 

But in the case of a man who has sex with his wife’s sister, there is no Torah injunction barring him from subsequently returning to his wife. Consequently, the rabbis don’t institute one in a case where he does so by accident. 

If this strikes you as unfair, you’re not alone. And one can’t help but notice that the Gemara in both cases pins the crime on the woman, not the man. Later on today’s daf, the Gemara tries to read an enigmatic statement in the mishnah as disagreeing with this ruling. That statement, in the mishnah on yesterday’s daf, comes from Rabbi Yosei:

Rabbi Yosei says: Whoever disqualifies others also disqualifies himself, and whoever does not disqualify others does not disqualify himself.

On today’s daf, the Gemara suggests that Rabbi Yosei is saying that the law should cut both ways. If the husband disqualifies the sister from returning to her husband, he should also disqualify himself from returning to his first wife. And if he is allowed to return to his wife after mistakenly marrying his wife’s sister, the sister should be permitted to return to the brother-in-law as well. 

The rabbis ultimately dispute this read and go on to try and figure out what Rabbi Yosei was actually saying. But it’s at least a little reassuring that they tried to understand his statement as opposing the differential treatment of husbands and wives in these cases.

Read all of Yevamot 95 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 10th, 2022. If you are interested in receiving the newsletter, sign up here.

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