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Yevamos 3

YEVAMOS 3 & 4 - dedicated by Dr. Eli Turkel (of Raanana) and family; may they be blessed with much Nachas from their children and grandchildren.

*1*) [line 17] ESHES ACHIV SHE'LO HAYAH B'OLAMO D'LO MISHUM KURVAH HU D'ASIRA - is Eshes Achiv she'Lo Hayah b'Olamo Asur because she is the *Yavam's* direct relative ("Kerovei Atzmo")? [She is only related to him through marriage!]

(a) Chazal teach (Yevamos 20a) that every woman whom the Torah requires to have Yibum may also perform Chalitzah. Similarly, when a woman has no Zikah for Yibum (i.e. she is not bound to one or more Yavam by the Torah in order for him to perform Yibum with her), she is not required to perform Chalitzah either. She may marry whomever she pleases, immediately. The reason for this is that when there is no Zikah for Yibum, it is a sign that no connection at all exists between the brother of the deceased and the deceased's wife.
(b) There are some exceptions to this rule:

1. When a doubt exists as to whether there is an obligation to do Yibum or not, the Yavam performs Chalitzah and not Yibum, because of the doubt (RASHI 3a DH Havah Amina).
2. When mid'Oraisa there is an obligation to perform Yibum but mid'Rabanan Yibum cannot be performed (e.g. an Ervah mid'Rabanan), the Yavam performs Chalitzah and not Yibum (Yevamos 20a). 3. When the Yavam is prohibited from performing Yibum because of an Isur Aseh or Lo Sa'aseh mid'Oraisa, he still must perform Chalitzah. These Isurim do not have the power to remove the Zikah for Yibum entirely (ibid., RASHI 9a DH v'Harei).
(a) According to the Torah law, when a married man dies childless, Yibum is preferable to Chalitzah. Only if his brother does not want to perform Yibum does the Torah command that the ceremony of Chalitzah be performed.
(b) However, since many men do not perform the Mitzvah of Yibum for the sake of the Mitzvah alone, but rather because of beauty or honor or the like, the Tana'im argue as to whether it is preferable to do Yibum with ulterior motives or to perform Chalitzah. The Chachamim (Yevamos 39b) claim that Yibum is still preferable. According to Aba Shaul, though, if a Yavam performs Yibum for reasons other than for the sake of the Mitzvah, he is dangerously close to violating the prohibition of Giluy Arayos (forbidden relations) by taking his brother's wife when there is no Mitzvah of Yibum. Therefore he maintains that it is preferable to perform Chalitzah.


(a) It is forbidden for any Jew to remarry his wife after divorcing her, if she married someone else in the interim (who subsequently divorced her or died), as the Torah states, "Lo Yuchal Ba'alah ha'Rishon Asher Shilecha, Lashuv l'Kachtah..." (Devarim 24:4). This Isur applies only if she was married after the initial divorce; if she was raped, her ex-husband may remarry her.
(b) The Tana'im argue as to whether the ex-husband is prohibited from remarrying her if she became engaged (but not married) to someone else after the initial divorce (Yevamos 11b).

*5*) [line 34] V'EFSHAR LINASEI LA'ACHIM - she is able to marry the Yavam's brother [and she *actually is married to* the Yavam's brother]. (see TOSFOS DH Yachol)

(a) When an Isur Lo Sa'aseh prohibits a certain action that prevents a person from performing a Mitzvas Aseh, the Torah states that the Aseh is able to "push aside" the Lo Sa'aseh. For example, when a person wants to wear a four-cornered linen garment, the Isur of Sha'atnez prohibits attaching woolen threads to it. However, the Mitzvah of Tzitzis requires adding threads of Techeles (that are made of wool) to this garment. The Torah commands that in this case the Mitzvas Aseh overrides the Lo Sa'aseh.
(b) The Tana'im argue as to the source of this Halachah. Some learn it from the fact that the Torah specifically wrote the Mitzvah of Tzitzis and the Isur of Sha'atnez as adjacent verses (Semuchin), an indication that the Mitzvah of Tzitzis overrides the Isur of Sha'atnez (Yevamos 4a). Others learn it from different sources (Yevamos 5a, Nazir 41a, 58a).
(c) Even though an Aseh normally overrides a Lo Sa'aseh, this is not the rule in every case. The Gemara explains that in certain instances, the Aseh does not have the power to override the Lo Sa'aseh. Some examples are:

1. A Lo Sa'aseh that is punishable by Kares is not pushed aside by an Aseh (Yevamos 3b).
2. An action that is prohibited by both a Lo Sa'aseh and an Aseh, is not pushed aside by a different Mitzvas Aseh (Chulin 141a).
3. Only in a case where the performance of the Aseh coincides with the transgression of the Lo Sa'aseh did the Torah command that the Aseh takes precedence. If performance of the Aseh is only accomplished after the transgression of the Lo Sa'aseh, the Lo Sa'aseh is not pushed aside (Shabbos 133a). (There are those who write that if a person *begins* to perform a Mitzvas Aseh while transgressing a Lo Sa'aseh, even though the Aseh is not yet completed by the time the Lo Sa'aseh is transgressed, it pushes aside the Lo Sa'aseh -- NIMUKEI YOSEF to Bava Metzi'a 33a).
4. If it is possible to perform the Aseh, in the case under discussion, *without* transgressing the Lo Sa'aseh (by performing the Aseh in a different way or at a different time), the Aseh does not push aside the Lo Sa'aseh (Yevamos 20b -- see TOSFOS YESHANIM to Shabbos 25a). (The Rishonim argue as to whether an Aseh pushes aside a Lo Sa'aseh when it is possible to perform the Aseh without transgressing the Lo Sa'aseh, through the use of a certain item that the person does not currently have the means to obtain (RASHBA Yevamos 4b).
(d) The Rishonim explored the possibility that an Aseh also does *not* push aside a Lo Sa'aseh in other cases:
1. When one person performs a Mitzvas Aseh by doing a certain action in which two people transgress the Lo Sa'aseh.
2. When the action is prohibited by two Mitzvos Lo Sa'aseh, and not only one (TOSFOS Yevamos 3b DH Lo Sa'aseh).
3. When the action is prohibited in another instance by a Lo Sa'aseh and an Aseh, even though in the case at hand there is only a Lo Sa'aseh that prevents it (TOSFOS Kidushin 34a DH Ma'akeh).
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