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Nedarim, 74


QUESTION: The Tana'aim in the Mishnah argue whether a Yavam can be Mefer the Nedarim of a Yevamah. Rebbi Eliezer says that even when there are two brothers who are Yevamim, one of them can still be Mefer the Yevamah's Nedarim. Rebbi Yehoshua says that only when there is a single Yavam can he be Mefer the Neder. Rebbi Akiva says that even a single Yavam cannot be Mefer a Yevamah's Neder.

The Gemara says that Rebbi Akiva holds that there is no Zikah. Rebbi Yehoshua holds that even though there is Zikah, and that is why a single Yavam can be Mefer, when there are two Yevamim neither can be Mefer because "Ein Bereirah," since it will only become known later which one was her true husband.

The Gemara asks why does Rebbi Eliezer say that when there are two Yevamim one of them can be Mefer, if "Ein Bereirah."

What is the Gemara's question on Rebbi Eliezer? Perhaps Rebbi Eliezer holds that "Bereirah" *does* work (like we find that some hold, in Beitzah 37b and other places)! (MELO HA'RO'IM)

ANSWER: The MELO HA'RO'IM answers that the RAN seems to answer this question. The Ran explains that Hafarah differs from Kinyan because for Hafarah, it does not suffice for the husband to be Mefer -- we also have to know at the time that he is Mefer that he is the true husband. The Torah says "v'Ishah Yefeirenu" -- "*her husband* shall annul it" (Bamidbar 30:14), teaching that we must know who her husband is. Since "Bereirah" only works retroactivly, we cannot know at the time of the Hafarah who the true husband is, but only later, retroactively, and therfore neither Yavam can be Mefer. Even if Rebbi Eliezer holds "Yesh Bereirah," when there are two Yevamim, neither should be able to be Mefer, because at the time of the Hafarah we do not know who is her real husband (who will do Yibum with her).

The ROSH has a similar approach. Instead of citing the Gezeiras ha'Kasuv of "v'Ishah Yefeirenu," the Rosh suggests that *Zikah* cannot take effect on the Yavam unless we know at the time that he is the one who will actually do Yibum with the Yevamah. It is not enough to determine it retroactively through "Bereirah." (His logic might be that Zikah is not a full bond or connection, but only a tenuous connection between the Yavam and Yevamah, and such a weak connection cannot be applied retroactively, like the Ran says on 67a regarding the Hafarah of the Arus without the father.)

However, if this is true, then why does the Gemara say that Rebbi Eliezer should not hold that there is Zikah with the Yevamim because of "Ein Bereirah?" The reason he cannot hold that there is Zikah has nothing to do with "Bereirah," but with a specific requirement in Hafarah!

The Ran avoids this question by pointing out that the words "Ein Bereirah" do not have the normal meaning of "Bereirah." Rather, here these words mean that it is not clear to us to which man she is Zekukah, and therefore there is no Zikah. We find a similar use of the phrase "Ein Bereirah" in TOSFOS in Gitin (24b, DH l'Eizo) in the name of the RI.


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