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Gemara Yevamot 55b (Soncino's Translation)

what, however, can be said, according to him who maintains [that for such an act one is] guilty? - The exclusion is rather that of intercourse with a dead woman. Since it might have been assumed that, as [a wife], even after her death, is described as his kin, one should be guilty for [intercourse with] her [as for that] with a married woman, hence we were taught [that one is exonerated].

So there is a Hava Amina, before the teaching of a redundant verse, that a man who sleeps with a married woman, after her death, is Chayav as if she was alive. Sheer is obviously not a sign that she is still married to him. Following this logic if he has intercourse with his dead mother is it an incest? Obviously not.

In Gemara, each Hava Amina needs to be understood because it contains a rational argument. I don't understand how such a case can be viewed as an adultery. Can someone help me to understand better the Hava Amina?

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    Isn't that answered by the very next line of the Gemara? From the same translation: "Since it might have been assumed that, as [a wife], even after her death, is described as his kin [In Lev. XXI, 2, where the text enumerates the dead relatives for whom a priest may defile himself. As was explained, supra 22b, his kin refers to one's wife], one should be guilty for [intercourse with] her [as for that] with a married woman, hence we were taught [that one is exonerated]." – Meir Aug 18 at 16:47
  • @Meir I already learned the Gemara, I know this, but the svara of the hava amina is very odd for me. – kouty Aug 18 at 17:15
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IMHO the answer lies here:

נדרים פא ב

אמר מר ושלא אשמש מטתי יפר משום דברים שבינו לבינה היכי דמי אילימא דאמרה הנאת תשמישי עליך למה לי הפרה הא משועבדת ליה אלא באומרת הנאת תשמישך עלי

One sage said: (If a wife vows) not to have sex (with her husband) - the husband can nullify the vow - It's a vow is in the context of their relationship. How is it? If she said "I forbid you to enjoy from sex with me" - why should he (to nullify, it's needless)? She (her body) owned by him (for this purpose), but she was saying "I forbid myself the enjoyment from sex with you"...

Nedarim (vows) are 'attached' to real, physical object. That means that the husband has some ownership on his wife's body (and vice verse, BTW).

Who says that this ownership is void after death? (but don't have intercourse with dead bodies!!!)

  • This Gemara also answers this !!! – Alaychem Aug 22 at 9:35
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    Who says? האשה קונה את עצמה בשני דרכים; בגט ובמיתה If death of the wife doesn't also dissolve the marriage then how can he marry her sister? – Double AA Aug 22 at 12:05
  • @DoubleAA I agree, but for הוה אמינא, That's enough. – Alaychem Aug 22 at 13:06
  • No, there is no hava amina he cannot marry her sister after her death if I remember correctly the Gemara. אשה אל אחותה is a separate drasha – kouty Aug 22 at 20:39
  • See 57a 12. דאי לא תימא הכי בת ישראל שניסת לכהן ומית תיכול שכבר אכלה 13. ורבא התם פקע קניניה – kouty Aug 22 at 21:38

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