Tosefta Yevamot 6:6

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The status of a female convert and a freedwoman in marriage
Date: 
3d CE
Place: 
Syria Palaestina
Language: 
Hebrew
Category: 
Jewish
Literary genre: 
Legal text
Title of work: 
Tosefta
Reference: 
Yevamot 6:6
Commentary: 

This text deals with the marriage of women, or more specifically, how long women are required to wait before they remarry in order to make sure that they are not pregnant. The aim of this waiting period is to clarify the identity of the father: is he the current husband (or lover), or the previous one? The text presents several opinions regarding the question of waiting. Some of them single out specific categories of women according to their chance of becoming pregnant, while others apply the same rule to all. Since one of the opinions focuses on female converts and freedwomen, this text is relevant to our discussion regarding converts and freedmen or freedwomen as new “citizens” within the people of Israel (for more information about conversion, see the commentary of Mishnah Bikkurim 1:4-5).

Section A cites an opinion of Rabbi Meir, a fourth-generation tanna who was active in the middle of the second century. His teaching begins with a list of women who were married but could not conceive. Yet, they need to wait for three months before they remarry. This list includes only women who were married before and not all women as described in Section C and in Mishnah Yevamot 4:10 (cited below). Thus, if these women for whom the chance of pregnancy is slim should wait, then this rule matters even more so for other women who can conceive.

Section B presents the opinion of Rabbi Yehudah, a fourth-generation tanna who was active in the middle of the second century, who permits a woman to become betrothed and to remarry immediately (however, it is not clear whether he refers to all women or only to those who are mentioned by Rabbi Meir in Section A). If Rabbi Yehudah refers to all women, according to his view, waiting is not required. However, in a parallel which appears in Mishnah Yevamot 4:10, there is a different version of Rabbi Yehudah’s view:

ר' יהודה או'. הנשואות יתארסו והארוסות ינשאו חוץ מן הארוסה שביהודה מפני שלבו גס בה.

“Rabbi Yehudah says: ‘Married women [whose husbands have died or divorced them] may become betrothed, and betrothed women [whose fiancés divorced them (ended their engagement) or died] may remarry, except for a betrothed woman in Judea because [in that region, her betrothed] feels no shame in her presence (due to their prior sexual contact).’”

According to this version of Rabbi Yehudah’s opinion, women who were married but whose husband died or divorced them can become betrothed, but still have to wait for three months before getting married. Only betrothed women can remarry immediately, except for the betrothed women of the region of Judea (in contrast to other areas of the land of Israel) since in that region a betrothed couple may have sexual intercourse before the wedding (see Mishnah Ketubbot 1:5). Regardless, according to the Tosefta, Rabbi Yehudah allows women to become betrothed and remarry immediately (if his teaching there refers to all women and not only to those mentioned by Rabbi Meir).

Section C quotes a teaching from Rabbi Ishmael, the son of Rabbi Yoḥanan ben Beroqa, also a fourth-generation tanna who was active in the middle of the second century. He transmits what he heard in the vineyard in Yavneh. This town is known in rabbinic texts as the center in which the rabbis rehabilitated religious life after the destruction of the second Temple, and in which the rabbinic court was assembled. Scholars do not agree about the exact nature and scale of the rabbinic initiative in the years after the destruction, nor do they agree over what influence the rabbis had over the Jewish population in Judea during this period. Yet, attributing a teaching to Yavneh may reinforce its authority. According to this teaching, all women, regardless of their assumed previous sexual activity and matrimonial status, and therefore their likelihood of conceiving, should not marry and even not become engaged until they have waited for three months. This is also the law according to Mishnah Yevamot 4:10, where it is presented through an anonymous voice:

וכן שאר כל הנשים לא ינשאו ולא יתארסו עד שיהו להן שלושה חדשים. אחד בתולות ואחד בעולות ואחד אלמנות ואחד גרושות ואחד ארוסות ואחד נשואות.

“And so all other women should refrain from marrying and becoming betrothed until they have [waited for] three months. One [rule applies to] virgins, women who have been penetrated (are no longer virgins), widows, divorcées, betrothed women, and married women [alike].”

The Mishnah, therefore, adopted the teaching that appears in Section C as the law, while omitting the name of Rabbi Ishmael, the son of Rabbi Yoḥanan ben Beroqa, and the association with Yavneh.

Section D cites Rabbi Yehudah again. For Rabbi Yehudah, only a giyoret (female convert), a captive (female), and a meshuḥreret (female freed slave) should wait three months before becoming engaged and marrying again. This section is the most important for our discussion, since it deals with the convert and the freedwoman. According to Rabbi Yehudah, these women were most likely to have had sexual intercourse, and therefore only these women, according to his view, should wait. While a captive woman and female slave were not able to prevent sexual activity initiated by a captor or master, it is interesting that Rabbi Yehudah also includes the female convert. Indeed, rabbinic legal texts tend to connect the convert and the freed slave (for more on this tendency, see the commentary on Mishnah Yevamot 6:5). While this text, as well as Mishnah Yevamot 6:5, which includes legal material, assumes that such women (and not only the freedwomen) are not sexually guarded, connecting them from a legal point of view, other texts, namely Tosefta Horayot 2:11 and Jerusalem Talmud Horayot 3:8, 48b, provide a different picture. These texts present the convert woman and the freedwoman’s sexual images as dissimilar, by providing social insight into Jewish society in the land of Israel: men want to marry female converts, but are more reluctant where freed female slaves are concerned. The reason cited is the women’s previous sexual activity (due to the possibility that a slave had been required by her master to engage in sexual acts). The assumption is that a female slave was previously sexually available, or in Hebrew, mufqeret or muvqeret, a term which is often used in regard to property that is declared as free for all. As Catherine Hezser points out: “The suspicion of the slave girl’s sexual promiscuity was of course well grounded, since female slaves had no protection against their masters’ sexual assaults and exploitations” (“The Social Status of Slaves,” p. 115). On the other hand, according to this tosefta (and the parallel section from the Talmud), a convert woman is assumed to be sexually guarded, and therefore in a society in which virginity and sexual restraint of women were valued, everybody is happy to marry her. Yet, when legal issues arise, such as marriage of female converts and freedwomen to priests, or whether a woman can marry immediately or must wait three months to prove that she is not pregnant, rabbinic texts tend to understand these two groups of women together (although in our text, it is only Rabbi Yehudah’s opinion given).

I suggest that often, the rabbinic legal model of conversion is Roman manumission, since in several aspects rabbinic law puts freedmen and converts in the same category (or at least discusses them as proximate categories). Thus, as Roman freedmen and freedwomen were not allowed to marry into the senatorial order, so the Jewish freedwomen are not allowed to marry a priest (which was regarded as the upper stratum of Jewish society), and accordingly, a female convert was also banned from such marriage (however, according to Rabbi Yehudah’s opinion in Tosefta Qiddushin 5:1-2, a male convert and a freedman are permitted to marry a daughter of a priest [kohenet]). For Rabbi Yehudah, a female convert presumably has had sexual activity that justifies the three-month wait; in that respect she is similar to the freedwoman. Thus, the legal tendency to put converts and freedmen together affects the way female converts are viewed. Since a freedwoman was a slave, it indicates her sexual engagement in the past, and similarly a convert woman is legally understood within the same category.

Sections E and F include the view of Rabbi Yose, a fourth-generation tanna who was active in the middle of the second century. In contrast to the opinion that women (all or some of them) should wait three months, he permits them to become engaged and marry immediately, except for widows, who should avoid being betrothed for thirty days because of their mourning period. In the version of his opinion presented in the Mishnah (Yevamot 4:10), Rabbi Yose allows women to became engaged immediately, but not to get married. It is possible that his opinion was adjusted in the Mishnah according to the rule that all women should wait (this editorial tendency of the Mishnah may also explain the difference between Rabbi Yehuda’s opinion in Section B and its parallel in the Mishnah).

Section G concludes that no woman can marry before having waited for three months. The Tosefta (and also the Mishnah) therefore treat all women equally in the end; in practice, there is no differentiation between a female convert, a freedwoman and all other women. However, what still remains worth noticing in this text, is that the female convert is not distinguished from the freedwoman, and there is no voice opposing Rabbi Yehudah’s view (which appears in Section D) that a female convert is assumingly not sexually guarded (for more on these sources, see Wilfand, “Did Roman Treatment of Freedwomen Influence Rabbinic halakhah”).
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Tosefta Yevamot 6:6
Author(s) of this publication: Yael Wilfand
Publishing date: Fri, 07/05/2019 - 12:00
URL: https://www.judaism-and-rome.org/tosefta-yevamot-66
Visited: Mon, 06/21/2021 - 09:12

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