### INTRODUCTION TO SEDER NASHIM BY ### THE EDITOR GENERAL CHARACTER AND CONTENTS [page xxvii] The name 'Nashim', 'Women', given to the third 'Order' of the Babylonian Talmud is of ancient origin. This 'Order' was so known in the early Talmudic period when it had been also aptly designated 'Hosen'1 'Strength'. As the 'Order' devoted to regulating the relations between husband and wife, its fundamental teachings of the sanctity of marriage, moral sobriety and purity of family life, invested the Jewish home with the 'beauty of holiness', which enabled it to resist the disruptive influences and disintegrating force of centuries, thus proving the saving strength of the Jewish people throughout the long and chequered history of their existence. With woman as its principal theme, the appelation Nashim as applied to this 'Order', is self-explanatory. It may, however, be noted that in the Cambridge MS. of the Mishnah the opening tractate is entitled Nashim instead of Yebamoth, the title evidently having been derived from the third Hebrew word in the tractate: [H] 'Fifteen women'. Consequently, it has been suggested that Nashim was the name by which the first tractate was originally known and to which tractate it was originally restricted, and that this name was finally used to describe the whole of this 'Order', even as a whole is often made to bear the name of a part.2 The 'Order' is divided into seven tractates arranged according to the separate printed edition of the Mishnah in the following sequence:3 [page xxviii] YEBAMOTH (Sisters-in-law). Beginning with the Biblical law relating to the duty of a man to marry his deceased brother's childless widow, the Tractate deals generally with prohibited marriages, the ceremony of halizah, and the right of a minor to have her marriage annulled. 16 Chapters. KETHUBOTH (Marriage Settlements). Treats of the settlement made upon the bride, the fine paid for seduction, the mutual obligations of husband and wife, and the rights of a widow and stepchild. 13 Chapters. NEDARIM (Vows). Describes the various forms avow may take, the kinds of vows which are invalid, how they may be renounced, and the power of annulling them when made by a wife or daughter. 11 Chapters. NAZIR (Nazirite). Discusses what constitutes a Nazirite's vow, and how it may be renounced; enumerates what is forbidden to a Nazirite and deals finally with the case where the vow is taken by women and slaves. 9 Chapters. SOTAH (Suspected Adulteress). The main theme is the ordeal imposed upon a woman whose husband suspects her of infidelity, and its ritual. Other subjects dealt with are religious formulae which may be made in any language or only in Hebrew, the seven types of Pharisees, the reforms instituted by John Hyrcanus, and the Civil War between Aristobulus and Hyrcanus. 9 Chapters. GITTIN (Bills of divorcement). Treats of the various circumstances attending the delivery of the bill of divorcement to the woman when the marriage is to be dissolved. 9 Chapters. KIDDUSHIN (Consecrations). Deals with the rites connected with betrothal and marriage, the legal acquisition of slaves, chattels and real estate, and principles of morality. 4 Chapters. The above sequence has been followed in this publication, the tractates in the eight volume first edition appearing for practical reasons as follows: Vols. I and II. Yebamoth. Vols. III and IV. Kethuboth. [page xxix] Vol. V. Nedarim. Vol. VI. Nazir and Sotah. Vol. VII. Gittin. Vol. VIII. Kiddushin. For the edition de luxe it was found expedient to follow another arrangement: Vols. I, II and 111. Yebamoth. Vols. IV, V and VI. Kethuboth. Vol. VII. Nedarim. Vol. VIII. Nazir. Vol. IX. Sotah. Vol. X. Gittin. Vols. XI and XII. Kiddushin. The inclusion of Nedarim in this 'Order', although it has no particular bearing on the subject of 'Women', is because the Scriptural basis of the tractate is Numbers XXX, 3ff which treats of vows made by women — wives and unmarried daughters. The resemblance of Nazir to Nedarim, both dealing with vows, is responsible for the inclusion of the former in this 'Order' instead of Kodashim to which it properly belongs (v. Sot. 2a). Another reason is given in the Talmud for the inclusion of Nazir. Assuming the order of the tractates to be Gittin, Nazir, Sotah, it is explained that Nazir has been included as an antidote to Gittin and Sotah (v. Naz. 2a). Yet in another place (Sot. 2a) the order of the tractates is assumed to be Nedarim, Nazir, Sotah. In view of this divergence it is idle to seek any definite logical sequence in the arrangement of the several tractates within the 'Order'. There is, however, common agreement about Yebamoth being assigned the pride of place at the head of this 'Order'. It is said to owe its position to the number of its chapters which is greater than that of any other tractate in Nashim. The opinion may, however, be hazarded that it is because of the fundamental purpose of marriage which under-lies the Levirate laws dealt with in this tractate that it was selected as a fitting introduction to this 'Order'. The primary object of Levirate Marriage was to provide an heir to succeed in the [page xxx] name of the deceased (Deut. XXV, 6). Marriage having been regarded in Judaism as a divine institution ordained primarily for the purpose of the propagation of the human species, a childless marriage was deemed to have been, in a large sense, a failure. To redeem the deceased brother's failure, it was the duty of the eldest surviving brother to marry his widow and raise, so to speak, a son for him. Where the brother was so churlish as to refuse to redeem his brother's memory from failure, he had to submit to Halizah. SOME FUNDAMENTAL PRINCIPLES OF THE LAWS OF MARRIAGE AND DIVORCE IN THE TALMUD
MARRIAGE
The Rabbis of the Talmud, unlike the Church Fathers, never attached any stigma to marriage. Being opposed to asceticism and celibacy as alien to the spirit of Judaism, they did not regard a person who had never married as superior to one 'who had contaminated himself by marriage'. On the contrary, they declared that true manhood can be realized only through married life: 'He who has no wife is no man' (Yeb. 63a). Marriage was natural in purpose, but divine in origin. As a divine institution it was viewed by them in a twofold light: Firstly, as a means intended for the propagation of the human race; secondly, as an ideal state for the promotion of sanctity and purity of life. Whilst prizing chastity above all other virtues, they refused to ascribe anything degrading to the marital union per se. Prenuptial connections, whether in the case of men or women, they did truly condemn. Not only was harlotry prohibited by them on the basis of Biblical commands (Lev. XIX, 29, and Deut. XXIII, 18), but they even went so far as to forbid the private association of sexes.4 Yet the regulated sexual relations between husband and wife were raised to the dignity of a positive command. Thus it is the unmarried man who was said by them to live in unchastity — at least in the inescapable unchastity of thought if not of action; whereas the married man [page xxxi] alone could live in purity. No wonder that they regarded marriage as a holy state, entrance into which carried with it forgiveness of sins.5 For this reason they encouraged early marriage, declaring eighteen to be the ideal age, although realists as they were, they insisted on a man being in a position to provide for a wife before venturing into matrimony.6 The marriage laws as developed by the Rabbis in the Talmud only served to confirm and deepen the elevated view of married life. Already from time immemorial, a Jewish marriage was contracted by two stages (v. Deut. XX, 7). In the Talmudic period these were designated respectively: erusin and nissu'in. The erusin was an act of betrothal effected by the bridegroom in the presence of two eligible witnesses before whom he declared, 'Be thou consecrated unto me …', [H]. This phrase is explained in the Talmud (Kid. 2b) as 'a setting aside of the woman like a consecrated object'. The bridegroom, that is to say, by the act of erusin imposes upon the woman the character of a sanctified object whereby she becomes prohibited to the world. That, however, does not imply that she is forthwith permitted to him without the need of any further rites; just as the mere consecration of an object for the sanctuary does not complete the process of making it acceptable as an offering. The bridegroom still stands to her in a prenuptial relation in which all marital connections are forbidden. The erusin is thus but a legal contract whereby the woman reserves herself for her husband, without however yet becoming permitted to him. In other words, she binds herself to give herself in marriage to him at the nuptials; otherwise neither he nor she has any claim on the other: He neither inherits from her in case of her death, nor has he any title to use her income or earnings; nor has she claim to sustenance or to any other obligation of a Jewish husband to his wife. This undertaking is, however, indissoluble save by divorce or death, and any act of infidelity on her part is treated as adultery. On the elapse of a certain period after the erusin, twelve months [page xxxii] in the case of a maiden, and thirty days in that of a widow, there followed the fulfilment of the contract — the nissu'in, at which the bride came to her husband for the consummation of the marriage. But for this consummation, as well as for the contract that preceded it, the consent of both parties was demanded. Indispensable when they had both become of age, consent was deemed an essential factor of marriage; and thus the Rabbis forbade a man to give his daughter in betrothal before she was old enough to express her own feelings on the subject of matrimony, although legally he had the right to contract a marriage on her behalf until she had reached adolescence — twelve years and six months plus one day. For this reason, too, the Rabbis insisted on every betrothal being preceded by shiddukin, a proposal of marriage, the disregard of which involved the infliction of disciplinary measures — flogging.7 It is this consideration too that lies behind the institution of mi'un which enabled an orphan girl, who had been given in marriage as a minor by her mother or brother, to have her marriage dissolved by a mere declaration of refusal. Whilst anxious to make provision for the marriage of an orphan girl, should circumstances demand it, the Sages refused to bind her against her own wish to the husband who had been chosen for her while she was not yet in a position to make her own choice, but reserved for her the right to regain her freedom without subjecting her to the necessity of a bill of divorce. Marriage by consent also explains the signification of huppah which forms one of the distinctive ceremonies at the nuptials. Whatever may be the origin of this ceremony, the huppah, which denotes the baldachin or canopy wherein the bridegroom receives the bride, came to signify in the Talmud the voluntary entrance of the bride upon the final stage in her consecration to the task of womanhood begun at the erusin, and her free surrender to her husband for the consummation of marriage.8 Thus is the real significance of the term Kiddushin revealed. It has two aspects: a negative aspect and a positive one. The erusin, in rendering the [page xxxiii] woman forbidden to the world, discloses only its negative side; whereas the positive side is released at the nissu'in, which completes the kiddushin and thus perfects it. Both the erusin and nissu'in together constitute the kiddushin, sanctifying the union.9 There is still another requisite for the consecration of the union. The kethubah — the deed of marriage settlement10 instituted primarily with the object of protecting a wife against hasty divorce, had to be drawn up and duly completed before the consummation of marriage. In view of the right vested by the Bible in the husband to divorce the wife at his pleasure — a theoretical right which the Rabbis could not entirely set aside11 — it was felt that no woman could enter upon matrimony with a free and easy mind without being in possession of this safeguard to her marital security. The Sages accordingly forbade marital relations as long as the kethubah had not been completed. Furthermore, they declared that it was forbidden for husband and wife to live together for a single moment without a kethubah (B.K. 89a); and where the kethubah was lost, they had to abstain from intercourse until another kethubah had been made out. [page xxxiv]
DIVORCE AND SECOND MARRIAGES
This elevated view of marriage is likewise reflected in the Talmudic law of divorce. It is a commonplace to assert that the New Testament condemns divorce as sinful and thus to oppose this stricter view to the latitude allowed by Judaism. But this categorical assertion is open to question. One searches in vain throughout the New Testament for a denunciation of divorce as divorce. In every instance where the teaching of Jesus on the matter is reported, the emphasis is on remarriage rather than on divorce itself. Whosoever putteth away his wife and marrieth another committeth adultery; and whosoever marrieth her that is put away from her husband committeth adultery (Luke XVI, 18). The parallel passages in Mark X, 11-12 and Mat. V, 31-32 vary in phraseology but the emphasis is everywhere the same — viz., remarriage after divorce. Even in Mat. XIX, 3-6 where Jesus, appealing to Genesis, makes his famous declaration, 'What therefore God bath joined together let not man put asunder', the complementary verses, 7-9, make it clear that what he was concerned with was not the tragedy involved in a divorce — the wrecking of a home — but the remarriage that would follow. Provided there was no remarriage, the mere putting away of a wife does not seem to have evoked his disapproval. This becomes even more evident in Paul: And unto the married I command, and yet not I but the Lord, Let not the wife depart from her husband. But if she depart let her remain unmarried or be reconciled to her husband. (I Cor. VII, 10). This attitude is in consonance with the New Testament view that extols celibacy and virginity above marriage and married life.12 As against this attitude, the Talmud with its elevated view of marriage considers the separation of husband and wife which divorce entails, a domestic tragedy for which 'the very altar of God sheds tears', and for this reason declares that 'he who dismisseth his wife is hated by God'.13 Yet with all their abhorrence of divorce, the Sages held the continuance of intimate relations between husband and wife after the bonds of affection were snapped to be immoral; and the offspring of such a union was regarded by them as morally unhealthy, belonging to the class of 'rebels' and of such as 'transgress' against God (cf. Ezek. XX, 38).14 With the result, that whilst the [page xxxv] Rabbis instituted a number of measures such as the payment of the kethubah and other minute regulations attendant on the procedure of divorce designed to act as a check against its abuse, they refused to blind themselves to the harsh realities of life, when divorce with freedom to remarry could come as the only happy release from a galling relationship which discordant natures and unequal tempers had rendered intolerable. Closely related to the attitude of the Talmud on remarriage after divorce is its attitude of remarriage on widowhood. The strong voice of disapproval of second marriages heard in the Church never found an echo in the Beth Hamidrash. 'If a man married in his youth, let him also marry (if necessary) in his old age'.15 Widows likewise were encouraged to remarry, though they were not likely to find a suitor for a third marriage owing to the popular belief that a widow who had been unfortunate in the loss of two husbands was ill-starred and apt to bring death on him who might venture to marry her. In the case of a childless marriage, the widow could find a home in the house of her deceased husband's brother by contracting levitate marriage (yibbum), or she could marry a stranger after having secured her freedom by halizah.16 Where she married the brother-in-law, the Rabbis enacted, as a safeguard against divorce, that his estate, in the event of divorce, was to be charged with the payment of the kethubah, if the first husband's estate was insufficient for the payment thereof,17 although according to the earlier law the widow had no claim on the levir beyond the ordinary marital obligations of a husband to a wife.18 'Of all expositions by the Sages of the commandments in the Torah, none redounds more to their praise than their exposition of the marriage laws'.19 Such was the verdict of past generations; and such it is confidently anticipated will be the verdict of every diligent student who will endeavour to penetrate the spirit that animated the discussions in the Babylonian and Palestinian schools presented in this 'Order'. [page xxxvi] METHOD AND SCOPE TEXT. The Text used for this edition is in the main that of the Wilna Romm Edition. Note has, however, been taken of the most important variants of manuscript and printed editions some of which have been adopted in the main body of the translation, the reason for such preference being generally explained or indicated in the Notes. All the censored passages appear either in the text or in the Notes. TRANSLATION. The translation aims at reproducing in clear and lucid English the central meaning of the original text. It is true some translators will be found to have been less literal than others, but in checking and controlling every line of the work, the Editor has endeavoured not to lose sight of the main aim of the translation. Words and passages not occurring in the original are placed in square brackets. NOTES. The main purpose of these is to elucidate the translation by making clear the course of the arguments, explaining allusions and technical expressions, thus providing a running commentary on the text. With this in view resort has been made to the standard Hebrew commentators, Rashi, the Tosafists, Asheri, Alfasi, Maimonides, Maharsha, the glosses of BaH, Rashal, Strashun, the Wilna Gaon, etc.20 Advantage has also been taken of the results of modern scholarship, such as represented by the names of Graetz, Bacher, Weiss, Halevy, Levy, Kohut, Jastrow, Obermeyer, and — happily still with us — Krauss, Buchler, Gmzberg, Klein and Herford among others, in dealing with matters of general cultural interest with which the Talmud teems — historical, geographical, archaeological, philological and social. GLOSSARY AND INDICES. Each Tractate is equipped with a Glossary wherein recurring technical terms are fully explained, thus obviating the necessity of explaining them afresh each time they appear in the text. To this have been added a Scriptural Index and a General Index of contents. [page xxxvii] In the presentation of the tractates the following principles have also been adopted: The Mishnah and the words of the Mishnah recurring and commented upon in the Gemara are printed in capitals. [H] introducing a Mishnah cited in the Gemara, is rendered we have learnt'. [H] introducing a Baraitha, is rendered 'it has been (or was) taught'. [H] introducing a Tannaitic teaching, is rendered 'Our Rabbis taught'. Where an Amora cites a Tannaitic teaching the word 'learnt' is used, e.g., [H], 'R. Joseph learnt'. The word tanna designating a teacher of the Amoraic period (v. Glos.) is written with a small 't'. A distinction is made between …: [H] referring to a Tannaitic ruling and …: [H] which refers to the ruling of an Amora, the former being rendered 'the halachah is …' and the latter, 'the law is …' R. stands either for Rabbi designating a Palestinian teacher or Rab designating a Babylonian teacher, except in the case of the frequently recurring Rab Judah where the title 'Rab' has been written in full to distinguish him from the Tanna of the same name. [H], lit., 'The Merciful One', has been rendered 'the Divine Law' in cases where the literal rendering may appear somewhat incongruous to the English ear. Biblical verses appear in italics except for the emphasized word or words in the quotation which appear in Roman characters. No particular English version of the Bible is followed, as the Talmud has its own method of exegesis and its own way of understanding Biblical verses which it cites. Where, however, there is a radical departure from the English versions, the rendering of a recognized English version is indicated in the Notes. References to chapter and verse are those of the Massoretic Hebrew text. Any answer to a question is preceded by a dash ( — ), except [page xxxviii] where the question and the answer form part of one and the same argument. Inverted commas are used sparingly, that is, where they are deemed essential or in dialogues. The archaic second person 'thou', 'thee' etc. is employed only in Haggadic passages or where it is necessary to distinguish it from the plural 'you', 'yours', etc. The usual English spelling is retained in proper names in vogue like Simeon, Isaac, Akiba, as well as in words like halachah, Shechinah, shechitah, etc. which have almost passed into the English language. The transliteration employed for other Hebrew words is given at the end of each tractate. It might also be pointed out for the benefit of the student that the recurring phrases 'Come and hear:' and 'An objection was raised:' or 'He objected:' introduce Tannaitic teachings, the two latter in contradiction, the former either in support or contradiction of a particular view expressed by an Amora. ACKNOWLEDGMENTS I desire again to express my grateful appreciation of the scholarship and diligence shewn by all the collaborators of Seder Nashim. My special thanks are due to Mr Maurice Simon, M.A., who has assisted in many respects, and to my dear wife for her invaluable help to me in many ways whilst engaged in this work. I am deeply grateful to Mr J. Davidson, the Governing Director of the Soncino Press, for the infinite patience and care with which he has seen these volumes of Nashim through the Press. In conclusion, I must tender my humble thanks to the Almighty God for having given me the strength to carry through, amidst other labours, this exacting and strenuous task. And on behalf of all those of us who have been closely concerned with this publication, [page xxxix] I offer the traditional prayer: [H] May it be Thy will, O Lord our God, even as Thou hast helped us to complete the Seder Nashim so to help us to begin the other Sedarim, 'Orders', and complete them. I. EPSTEIN Jews' College Marcheshvan 27, 5697 12 November, 1936 #### Footnotes Shab. 31a. V. Rengstorf, K. H. Die Mischna, Jebamot (Giessen, 1929), Introduction p. 1. This order rests on that of Maimonides except that he places Sotah between Gittin and Kiddushin. In the printed editions of the Babylonian Talmud the tractates appear in the following order: Yebamoth, Kethuboth, Kiddushin, Gittin, Nedarim, Nazir, Sotah. For other variations v. Strack. H., Introduction to the Talmud and Midrash (Philadelphia), 1931, p. 365. V. Glos. s.v. Yihud. J. Bik. III, 3. V. Sot. 44a. Kid. 12b. V. Yeb. 29b. This explains the first benediction at the Jewish marriage ceremony in which huppah is mentioned before kiddushin: 'Blessed art Thou, O Lord, who sanctifieth His people Israel by (the rite of) huppah and kiddushin' (P.B. p. 298). The kethubah guaranteed the wife out of the husband's estate, in the event of his death or divorce, not only a certain sum of money but also the return of her dowry and the property which she brought to him upon her marriage. Apart from the provision in regard to her general maintenance and other rights, there were special clauses providing for the wife's sons to be the sole heirs of her personal property — kethubath benin dikrin; and also for the maintenance and marriage portion of the daughters out of the husband's estate — kethubath benan nukban. The tendency of the Rabbis was nevertheless to restrict the freedom of the husband in the matter of divorce. In addition to the Biblical law that took away from the husband the right of divorcing a wife he had ravished, or whom he had falsely accused of infidelity during betrothal (erusin), the Rabbis introduced several other restrictive measures. He could not, for instance, divorce his wife if she had become insane, or if she was too young to take care of the bill of divorce. Some of the minute regulations incident to the drafting and delivery of the bill of divorce were also designed to check the husband against abuse of his power. V. Mat. XIX, 12 and I Cor. Ch. VII. Git. 90b. Ned. 20b. Yeb. 62b. V. pp. xxiii and xxx. V. Keth. 53b and Eben ha-Ezer, 168. V. Yeb. 38a. B. M. Lewin, Otzar ha-Geonim, Yebamoth, p. 24. These names are referred to more fully in the list of Abbreviations at the end of each Tractate. Directory of Sedarim and Tractates
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