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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.


QUESTION: The Beraisa teaches the source for the prohibition against doing Yibum with the Tzaros of one's Achos Ishto (wife's sister). The Beraisa says that this prohibition is derived from the extra phrase in the verse, "...Lo Sikach *li'Tzror*" -- "You may not take a woman in addition to her sister *to make them co-wives (Tzaros) to each other*" (Vayikra 18:18), which teaches that one may not marry the Tzaros of a woman who is an Ervah to him, even in a situation of Yibum (as derived from the Gezeirah Shavah of "Aleha"). The Beraisa asks from where do we know that the Tzaros of a Tzarah are also prohibited? The Beraisa answers that the verse says "Litzror" when it could have said "Latzur" (with one Reish), and thus it includes the Tzaros of a Tzarah.

Why is it necessary to derive the prohibition of Tzaros of a Tzarah from a verse? Once the Tzarah herself cannot do Yibum (because she is the Tzarah of an Ervah), she remains Asur to her husband's brothers because of the Isur of "Eshes Ach" (the wife of one's brother). Therefore, she is exactly the same as any other Ervah, and her Tzarah should be no different than a normal Tzarah of an Ervah!

Even though the Isur Ervah here is that of "Eshes Ach" which is usually suspended in a situation of Yibum, the Mishnah tells us in another case -- "Eshes Achiv she'Lo Hayah b'Olamo" -- that the Isur of "Eshes Ach" is able to prohibit her to the brother with whom she would have otherwise done Yibum, and the Gemara does not find it necessary to ask for a source for this. In that case, a brother who was born *after* his older brother died childless may *not* do Yibum, since they were not in the world at the same time, and thus his older brother's wife remains Asur to him as an "Eshes Ach," and her Tzaros are also Asur to him because they are Tzaros Ervah. Similarly, the Gemara should not need a source for the Tzaros of a Tzarah. In fact, RASHI (DH v'Eshes Achiv) compares the exemption from Yibum of Tzaros of a Tzarah to the exemption of Tzaras "Eshes Achiv she'Lo Hayah b'Olamo." Why, then, does the Gemara need a verse to teach us this Isur?

Furthermore, later (8b), when Rashi discusses the opinion of Rebbi, who finds another source for the exemption of Tzarah from Yibum but does not give a source for the exemption of Tzaros of a Tzarah, Rashi (DH Im Ken) says that Rebbi does not need a verse to teach that Tzaros of a Tzarah do not do Yibum, "because she is the Tzarah of an 'Eshes Ach'!" Why, then, is it necessary here to prove from a verse that Tzaros of a Tzarah are exempt from Yibum? (REBBI AKIVA EIGER)


(a) The Gemara itself actually cites an opinion that concurs with Rebbi Akiva Eiger's question, and says that no verse is needed to teach that Tzaros of a Tzarah may not do Yibum. The Gemara (13a) asks, "How do we know [that Tzaros of a Tzarah do not do Yibum]? Rav Yehudah says that we learn it from the word 'Litzror'. Rav Ashi says that it is logical [and no verse is needed]." Rav Ashi's opinion is exactly like Rebbi Akiva Eiger suggests!

Why, though, does the Gemara there ask for the source of the Isur of Tzaros of a Tzarah, if the Beraisa here (3b) clearly states that it is learned from a verse? In addition, how could Rav Ashi argue with the Beraisa and give a different source?

The VILNA GA'ON in his Hagahos here points out that the Girsa of many Rishonim did not include this line about Tzaros of a Tzarah in the Beraisa. According to that Girsa, there is no question on the Beraisa, nor on Rav Ashi, since neither one says that a verse is needed to teach the Isur of Tzaros of a Tzarah. Rather, Rebbi Akiva Eiger's question is on Rav Yehudah: why does he argue with Rav Ashi and try to find a source in a verse?

The RITVA (13a) says that Rav Yehudah agrees with Rav Ashi that no verse is needed to teach this Isur. He only mentions the verse as a scriptural support for the logic that prohibits Tzaros of a Tzarah (like an Asmachta). Rav Ashi explains what Rav Yehudah's real logic is, and they are not arguing at all. Accordingly, there is no question on Rav Yehudah, nor on Rav Ashi.

However, this is clearly not the approach of many other Rishonim. Rashi here (3b, DH Litzror, and 2b, DH Kach Tzaras Tzarasah) clearly says that according to Rav Yehudah, the source is from a verse and is *not* something we would know from logic.

In addition, TOSFOS (2a, DH Ad Sof) explains that the Girsa in the Beraisa should include the line about Tzaros of a Tzarah, and that both Rav Yehudah and Rav Ashi agree that the source for the Isur of Tzaros of a Tzarah is the verse of "Litzror." The argument later (13a) involves whether or not the Isur of the secondary Tzaros applies ad infinitum ("Ad Sof ha'Olam"); the Isur of those additional Tzaros is derived from logic or from a verse. According to Tosfos, Rebbi Akiva Eiger's question can be asked according to both Rav Yehudah and Rav Ashi. Why do the Amora'im seem to agree that it is necessary to have a verse to teach the Isur of Tzaros of a Tzarah?

(b) The verse does not say that the Tzarah of the Ervah does not fall to Yibum at all and has no "Zikas Yibum." It only says that the brother cannot do Yibum with the Tzarah, and she is Asur to him with a punishment of Kares (8a). We know that whenever there is an Isur Kares standing in the way of doing Yibum, it is also prohibited to do Chalitzah, as we find in the Gemara later (20a) and in Rashi (2b, DH v'Eshes Achiv). We know, therefore, that the brother may not do Yibum nor Chalitzah with the Tzaras Ervah.

If he is the only brother surviving, then there cannot be any Zikah of Yibum, because if there is, then she will never be able to remarry, since she is Zekukah to Yibum but cannot do Yibum nor Chalitzah. Rather, since the brother cannot do either act, there is no Zikah and the woman may marry anyone she wants.

However, when there are other brothers, perhaps the Zikah takes effect on the entire household as a whole, and once she is Zekukah to some of the brothers, she is also Zekukah to all of them. One brother -- the one to which this woman is an Ervah or a Tzarah of an Ervah -- cannot remove the Zikah by doing Yibum or Chalitzah. Any of the other brothers, though, can do Yibum or Chalitzah and thereby remove the Zikah from the entire household, and also remove the Isur of "Eshes Ach" for all of the brothers. And just like he removes the Zikah from the other brothers, he also removes the Zikah from the brother who could not do Yibum. Since the Tzaras Ervah was Zekukah to that brother, she will not become Asur with the Isur of "Eshes Ach." She will be like any other woman who is able to fall to Yibum more than once -- if the first brother who married her died childless, and then the second brother who married her through Yibum died childless, and so on. (In other words, this woman is considered to be an "Eshes Ach b'Makom Mitzvah," which does *not* stand in the way of doing Yibum.)

This is why we need a verse to teach us that the Tzaros of a Tzarah are prohibited, and there is no Zikah whatsoever (for either the Ervah or for the Tzaros) to the brother who is related to them as an Ervah.

This differs from the case of "Eshes Achiv she'Lo Hayah b'Olamo." In that case, we do not need a verse to show that there is no Zikah to the brother who is born after the first brother died and his wife fell to Yibum. We do not need a verse because the verses regarding Yibum in the Torah refer only to when the brothers were alive together, and not to when a brother was born after the first brother died. It is obvious that the younger brother is not included in the Zikah.

This is not the case, though, with regard to the Tzarah of an Ervah. The verses do not exclude the Tzarah in the discussion of Yibum. Instead, a different verse, not related to Yibum, teaches that she does not do Yibum. Since it is learned from a different source, there is room to doubt whether the verse of "Litzror" is teaching us that she is not in the Parashah of Yibum in the first place (and she is excluded from Zikah), or whether it is telling us that she is in the Parashah of Yibum, but the Torah says that she is not able to do Yibum or Chalitzah (but she has Zikah).

The same can be said according to Rebbi (8b). According to Rebbi, the verse that teaches that a Tzarah of an Ervah does not do Yibum is in the Parashah of Yibum itself. Since the verse excludes her from the Mitzvah of Yibum, there is obviously no reason to assume that there is any Zikah for the Tzarah of an Ervah, and that is why it is not necessary to bring a verse to exempt the Tzaros of a Tzarah according to Rebbi.

QUESTION: The Beraisa derives from the verse that teaches the Azharah of marrying one's "Achos Ishto" (wife's sister) that it is also prohibited to do Yibum with a Tzarah of an Ervah, and doing Yibum with her is punishable with Kares. Just like "Achos Ishah" may not do Yibum and carries the punishment of Kares, so, too, her Tzaros may not do Yibum.

The Gemara says that we learn the Azharah (the prohibition) of doing Yibum with an Ervah or with the Tzarah of an Ervah from a Binyan Av, from the Azharah that is written with regard to "Achos Ishto" and her Tzarah, which makes it punishable with Malkus. We learn that it is punishable with Kares from the Binyan Av as well. How can we use a Binyan Av to give Malkus and Kares? We have a principle that states "Ein Onshin Min ha'Din" -- an Azharah (and Malkus) or punishment of Kares (TOSFOS Chulin 115b DH Mah) cannot be administered on the basis of a an exegetical derivation of a "Kal v'Chomer" (Makos 5b) or "Binyan Av" (see RAN Nedarim 4b DH Teisi); how can we punish the Ervos and Tzaros based on a Binyan Av? (MELO HA'RO'IM)

ANSWER: TOSFOS (DH me'Achos Ishah) points out that the Gemara cannot be relying on a Binyan Av when it says that the Azharah of the other Arayos and Tzaros is derived from the Azharah of "Achos Ishto," because there are refutations (Pirchos) on some of them which prevent learning them from the Binyan Av. Rather, the Beraisa means that there is a *Hekesh* connecting all of the Arayos, like the Gemara later (8a) clearly concludes, and thus they can all be learned from "Achos Ishto." A Hekesh is not subject to the rule of "Ein Onshin Min ha'Din." This explains why we can derive a punishment through this Limud. It is not a Binyan Av, but a Hekesh, and a Hekesh may be used to teach a punishment.

However, the Melo ha'Ro'im challenges this answer: if there is a Hekesh between all of the Arayos, then why is the Isur of Tzaras Ervah limited to the fifteen Arayos and not to the other six, more severe, Arayos? It is clear from the Gemara later (54b) that the Hekesh applies to *all* of the Arayos, and if so, whatever Halachos exist by the fifteen Arayos should also exist by the six severe Arayos! Moreover, why is there Yibum for a Nidah? A Nidah is an Ervah (since being with a Nidah is Asur b'Kares) and should be included in the Hekesh (as the Gemara itself says later that a Nidah is connected to the other Arayos through the Hekesh with regard to other laws), and "Ein Meshivin Al ha'Hekesh" -- the Hekesh applies even when there are reasons to say that a Nidah is more lenient than the other Arayos.

For example, TOSFOS on 2a, DH v'Achos, says that Nidah is more lenient than the Arayos of the Mishnah because her Isur is not specific to the brother (the Yavam), but it is a general Isur that applies to every man in the world; in this sense she cannot be called an Ervah (see also TOSFOS HA'ROSH there). RABEINU TAM in Sefer ha'Yashar says that the Isur of Nidah is not described as an Ervah since her nature is to become Mutar and then Asur and then Mutar again, and so on. This explains why the Gemara does not learn Nidah from a Binyan Av from Achos Isha, which *is* an Ervah. But if there is a Hekesh between Nidah and the Arayos, we should not exclude Nidah from the Hekesh because of these "Pirchas." Why, then, does a woman who was a Nidah at the time that her husband died do Yibum (when she becomes Tahor)?

The question from the six severe Arayos can be answered by saying that the Gemara understands from the verse that in a situation of Yibum, a Tzarah of an Ervah is Asur because the Isur of "Eshes Ach" remains and prohibits her to her brother-in-law. This is learned from the fact that the Torah states the Isur of "Eshes Ach" specifically in a situation of Yibum. Therefore, in the case of the six severe Arayos who can *never* be married to one's brother (such that if he died they would fall to Yibum), there is nothing to which to apply the Hekesh! They are no different than the other Arayos; just like the Tzaros of the fifteen Arayos are not prohibited when there is no Yibum (for example, when Shimon's wife's sister was married to an unrelated man, Shimon is permitted to marry that man's other wife). The same is true for these six severe Arayos; their Tzaros are not prohibited in a normal situation, where there is no Yibum.

How will we answer the question from the case of a Nidah, though? It appears that the principle of "Ein Meshivin Al ha'Hekesh" means that we cannot ask a question (Pircha) on the Hekesh just because Nidah (or any item learned through a Hekesh) is more lenient or more severe than the other items included in the Hekesh (even though such a Pircha does remove the item from a Binyan Av and from a Kal v'Chomer). However, if there is more than just a Kula or Chumra, but there is a logical argument to propose why one of the objects should not be included in the Hekesh, then that logical argument *is* able to remove the item from the Hekesh and prevent the Halachah from being taught to that object via the Hekesh. In the case of a Nidah, there is a logical argument that challenges the comparison to the other Arayos, and thus she is removed from the Hekesh. It is not just a Kula or Chumra that exists by Nidah and not by the others, but there is an essential difference between Nidah and the other Arayos -- which is the reason that Kidushin may be made with a Nidah but not with the Arayos. Therefore Nidah is excluded from the Hekesh.

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