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Yevamos 26

YEVAMOS 26 - dedicated by Lee and Marsha Weinblatt of Teaneck, N.J. May they be blessed with health and happiness, and see their children and grandchildren ever grow in Torah and Yiras Shamayim!

1) [line 8] D'HAVAI KETATAH - (a) if he [i.e. the Yachid Mumcheh, the courier who brings the Get or the witness to the death] had *already been* quarreling with his wife before he permitted the other man's wife to marry, then he himself may marry the woman in question. (The reason for this is because it will be clear to all that he divorced his wife due to the previously existing quarrel, and not because he preferred the other woman to his wife -- RASHI; see Insights); (b) if he divorces his wife after quarreling with her (no matter *when* the quarrel started) and not suddenly and without warning, then he may marry the woman [that he testified about, or whose Neder he did not annul, or whose Get he brought], since it will not look like he divorced his wife in order to marry the other woman.

2) [line 10] D'ARGIL HU - the husband brought on the quarreling
3) [line 22] D'VAZIZ BENEI MINEI - the son is embarrassed to act immorally should his father marry the woman in question

*****PEREK #3 ARBA'AH ACHIN*****

4) [line 31] YESH ZIKAH
(a) A woman whose husband dies without children is "Zekukah," that is, connected or bound to the brothers of her husband for the purpose of performing the Mitzvah of Yibum. She is prohibited to marry whomever she wants until one of the brothers performs Chalitzah or Yibum with her.
(b) The Tana'im and the Amora'im argue with regard to the strength of the bond of Zikah. Those who are of the opinion Yesh Zikah rule that the bond is similar to the bond of a man with his betrothed or with his wife (even though the prohibition against the Yevamah marrying a non-brother is only a Lav and is not punishable with Kares or Chenek, as in the prohibition against living with a married woman.) This comparison has certain ramifications:

1. Those who rule Yesh Zikah rule that just as a man is prohibited from marrying his wife's sister, daughter, daughter's daughter, mother or mother's mother, so, too, the Yavam is prohibited from marrying these relatives of the Yevamah, while she is his Zekukah.
2. Another outcome of the opinion Yesh Zikah is that one Zekukah may become classified as the Tzarah (co-wife) of an Ervah when there exists a *Zikah* bond between the Ervah and the dead brother.
3. Some maintain that since the Zikah causes us to consider that the living brother has already married his Yevamah, if a third brother is born before the second one performs Yibum, this third brother is considered to have been born *after* the Yibum of the second brother. (This applies only according to Rebbi Shimon, who rules that if the third brother is born after the Yibum of the second brother, the Yevamah is not considered an Eshes Achiv she'Lo Hayah b'Olamo with regard to the third brother -- Yevamos 18b-20a.)
4. Finally, according to those who maintain Yesh Zikah, the Yavam may annul (Hafarah) the vows of his Yevamah just as he may annul the vows of his wife (Yevamos 29b).
(c) Those who rule Ein Zikah argue with the above reasoning and claim that the bond of Zikah is not like the bond of betrothal or marriage; therefore, the brothers-in-law are not prohibited from marrying the close relatives of the Yevamah, etc. (However, the brothers-in-law may be prohibited from marrying the close relatives of the Yevamah for another reason, namely, because it is prohibited to avert the Mitzvah of Yibum and Chalitzah by marrying a relative of the Yevamah and thereby exempting her from the need for Yibum ("Asur l'Vatel Mitzvas Yevamin" -- see next entry).
(d) Some opinions distinguish between the Zikah to one brother-in-law and the Zikah to two or more brothers-in-law. That is, even if we rule Yesh Zikah in the case of one surviving brother, when there are two or more brothers we rule Ein Zikah (since a woman cannot be bonded through Zikah to more than one husband). Similarly, there is a discussion in the Gemara if Zikah prohibits the Yavam from marrying the close relatives of the Yevamah even after she dies (Yevamos 17b). Even if we hold Yesh Zikah, though, when one brother performs *Chalitzah* or *Yibum* to one of the Zekukos, the Zikah is entirely removed from the others brothers and from the Tzaros retroactively (RASHI 23b DH Ein Motzi'in) permitting them to marry each other's close relatives (MISHNAH Yevamos 23b, 40b).
(e) Even those who maintain Yesh Zikah, and who prohibit the relatives of the Yevamah to the Yavam, agree that this prohibition is only mid'Rabanan (Rashi 28b DH Mitzvah Avud; Rishonim 17b -- this is self-evident since even Achos Chalutzah is only prohibited mid'Rabanan). There is one opinion, though, who maintains Yesh Zikah *min ha'Torah* (Rebbi Shimon according to Rebbi Oshiya, 18b)

(a) According to the opinion that rules Ein Zikah (see previous entry), the Yavam is permitted to marry the close relatives of the Yevamah. However, The Tana'im and Amora'im argue (Yevamos 18a) as to whether there is another reason why the brothers-in-law might be prohibited from marrying these women, namely, because it is prohibited to avert the Mitzvos of Yibum and Chalitzah ("Asur l'Vatel Mitzvas Yevamin"). Were the Yavam to marry these close relatives, the Yevamah would become an Ervah to him and therefore would be prohibited to him because of the Isur of Arayos. As a result, he would be exempt from performing the Mitzvos of Chalitzah or Yibum.
(b) Those who prohibit canceling the Mitzvos of Yibum rule that even if the Mitvah will not be definitely canceled, but only possibly canceled, it is still prohibited. Therefore, even if there is another brother who is able to perform Yibum or Chalitzah, the third brother is forbidden to marry the close relatives of the Yevamah lest the second brother die, making the third brother the only one eligible to perform Yibum or Chalitzah (ibid.). However, when there are three surviving brothers who are able to perform Yibum or Chalitzah, and the Mitzvah will only be averted if two of them die while the widow is waiting for Yibum or Chalitzah, all opinions agree that we need not worry that they will both die and the Mitzvah will be averted. Therefore one of them may marry a close relative of the Yevamah (Yevamos 26b).
(c) The Rishonim argue with regard to the strength of this prohibition. Is it a binding prohibition such that if the brothers-in-law are prohibited to the Yevamah at one point, it causes them to be prohibited to her for all time (RASHI Yevamos 24a DH v'Iy), or not (TOSFOS ibid. and to Daf 27b DH Aval)? Similarly, does this Isur cause the Chalitzah of the Yevamah by one of the brothers to be termed a Chalitzah Pesulah (since Yibum becomes prohibited) such that she needs Chalitzah from all of the other brothers or not (see TOSFOS ibid. DH Ela and to 26b DH v'Chalitzah, Insights to 27a)?


(a) If the brother-in-law of a man who dies childless is prohibited from performing Yibum, the Chalitzah that he performs is called a Chalitzah Pesulah, a marred, incomplete Chalitzah. According to those who maintain "Yesh Zikah," Chalitzah Pesulah may not be sufficient by itself to permit the Yevamah to marry whomever she wants, and to remove the bond of Zikah. Rather, if a Yevamah receives a Chalitzah Pesulah, she and her Tzaros must all receive Chalitzah from all of the other brothers-in-law.
(b) According to TOSFOS (DH v'Chalitzah), a Chalitzah it termed "Chalitzah Pesulah" only if the brother-in-law who performs Chalitzah is prohibited to the Yevamah because of the Isur of Achos Chalutzaso, or Achos Zekukaso, since these prohibitions (that are Isurei Kurvah mid'Rabanan) diffuse or weaken the Zikah of the Choletz. (See Insights to 27a).

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