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Yevamos, 7

YEVAMOS 6, 7, 8, 9 (Chanukah) - dedicated by Uri Wolfson and Naftali Wilk in honor of Rav Mordechai Rabin of Har Nof, a true beacon of Torah and Chesed.


QUESTION: The Gemara earlier (3b) stated that the source for the rule that the Mitzvah of Yibum does not override the prohibition of Arayos (other than that of "Eshes Ach") is the verse, "Aleha" (Vayikra 18:18). The Gemara there asked why we need a verse to teach us this; why would we have thought that the Mitzvah of Yibum *is* Docheh the prohibition of Arayos? In the next few pages, the Gemara attempts to find a source that in general, an Aseh is Docheh a Lo Ta'aseh that has Kares and therefore we need the verse of "Aleha" to teach that in the case of the Aseh of Yibum and the Lo Ta'aseh of Arayos (that is punishable with Kares), the Aseh is *not* Docheh the Lo Ta'aseh.

The Gemara concludes that an Aseh is not Docheh a Lo Ta'aseh that has Kares. Therefore, the Gemara searches for a reason why we would have thought that the Mitzvah of Yibum is Docheh the Lo Ta'aseh of Arayos, such that we need a verse to tell us that it is not Docheh the Lo Ta'aseh.

Why does the Gemara not learn from the case of Yibum that an Aseh *is* Docheh a Lo Ta'aseh that has Kares? The Torah tells us that the Mitzvah of Yibum overrides the Lo Ta'aseh she'Yesh Bo Kares of "Ashes Ach." Even though the Lo Ta'aseh of Eshes Ach has Kares, the Torah states that it is permitted to marry one's brother's wife in order to fulfill the Mitzvah of Yibum! We can learn from there that an Aseh *is* Docheh a Lo Ta'aseh that has Kares! Consequently, we need another verse ("Aleha") to teach that in the case of Yibum with another Ervah, the Mitzvah is *not* Docheh the Lo Ta'aseh that has Kares. Why did the Gemara not give this answer?


(a) TOSFOS (4a, DH Lo Ta'aseh) explains that nothing can be derived from the verse that teaches that the Isur of "Eshes Ach" is pushed aside for Yibum. The reason is because the Mitzvah of Yibum can never be performed under any circumstances without overriding the Isur of "Eshes Ach" (this is called "Mitzvaso b'Kach" -- the Mitzvas Aseh can *only* be performed by overriding a Lo Ta'aseh). We cannot derive from this case that in all other situations of an Aseh conflicting with a Lo Ta'aseh that has Kares, that the Aseh overrides the Lo Ta'aseh, because in all other cases there are circumstances in which the Aseh can be done *without* overriding the Lo Ta'aseh.

In KOVETZ HE'OROS (9:1), Rav Elchanan Wasserman, Hy'd, explains that Tosfos means to say that this is a *Pircha* to the suggestion that we learn this law of "Aseh Docheh Lo Ta'aseh she'Yesh Bo Kares" from Yibum through a Binyan Av. That is, Yibum is different from all other cases of an Aseh conflicting with a Lo Ta'aseh that has Kares, because in this case, Yibum can *never* be done without being Docheh the Lo Ta'aseh. We find an example of such a Pircha in Menachos (5b).

(b) The YAD RAMAH (Sanhedrin 53b) suggests a different logic. Since Yibum can only be done with an "Eshes Ach,' it is clear that the Torah never prohibited "Eshes Ach" in the first place in a situation of Yibum. (The Isur of "Eshes Ach" is "Hutrah," and not "Dechuyah.") This is different from all cases of an Aseh being Docheh a Lo Ta'aseh, where the Lo Ta'aseh is still in force, but the Aseh is more important and pushes it aside. In the case of Yibum, there is no Lo Ta'aseh of "Eshes Ach" whatsoever. This is why the Gemara cannot suggest that we learn from Yibum that an Aseh is Docheh a Lo Ta'aseh that has Kares.

This is clear from a number of laws of Yibum. If performing Yibum is permitted because it overrides the prohibition of "Eshes Ach," then once the surviving brother has lived with the Yevamah one time and thereby fulfilled the Mitzvah of marrying his deceased brother's wife, why is he permitted to be with her again ("Bi'ah Sheniyah")? The Gemara (20b) tells us that if the Yevamah is prohibited to the Yavam with an Isur Lo Ta'aseh, although Yibum is Docheh the Lo Ta'aseh, the Yavam must divorce her immediately afterwards, and he is not permitted to be with her again!

Furthermore, the Halachah is that if a Yavam divorces the Yevamah after performing Yibum, he is permitted to remarry her. If the Mitzvah of Yibum merely pushed aside, temporarily, the prohibition of "Eshes Ach," then why is he permitted to remarry her? He is not fulfilling any Mitzvah by doing so! The answer, explains the Yad Ramah, is because the Torah never prohibited an "Eshes Ach" in a situation of Yibum, and therefore she is completely permitted even after the Mitzvah has been fulfilled. No Dechiyah is necessary to permit her. (The Gemara itself demonstrates this difference between a "Dichuy" (that only pushes aside an Isur temporarily) and a "Heter" (that pushes aside an Isur absolutely). The Gemara (7b) says that "Ho'il d'Ishteri Ishteri" -- once the Isur becomes permitted, it becomes permitted absolutely, so that other Isurim related to it also become permitted.)

The same theme is proposed by the RAMBAN in Toras ha'Adam (cited by Kovetz He'orors, ibid.), RASHBA (Kidushin 21b), RITVA (here), and the RA'AVAD (Tamid end of 27a), who write, regarding Yibum and other Mitzvos, that when an Isur is "Hutrah," it is considered a completely different category than an Isur that has been pushed aside because of a Mitzvah. In the former case, the Heter is a permanent one, while in the latter case, the Heter is only temporary.

Tosfos' words indeed need clarification. Why should he consider Yibum to be an example of an Aseh that overrides a Lo Ta'aseh? If Yibum is permitted only because of the Mitzvas ASeh, why is it permitted for the brother to stay married to his brother's wife? Once he marries her and lives with her for the first time, he has fulfilled the Mitzvah of Yibum and there is no longer a Mitzvas Aseh to be Docheh the Lo Ta'aseh, and he should divorce her, like the Gemara says on Daf 20b! In addition, why is it permitted for him to remarry her once he divorces her? The Isur of "Eshes Ach" should prohibit him from remarrying her, since there is no fulfillment of any Mitzvah! (See KEREN ORAH 3b.)

Apparently, Tosfos felt that it was unacceptable to suggest that the Isur of Eshes Ach is "Hutrah," and does not apply at all to a Yevamah. It is clear from the Gemara that the Isur *does* remain even on the Yevmah, and it is only pushed aside at the time the Yavam does Yibum, due to the Mitzvah of Yibum. This is clear from the Gemara later (10b), which tells us that according to Reish Lakish, after one of the Yivmim takes one of the Yevamos as his wife, the brothers of the Yavam remain prohibited to the other wives of the deceased b'Isur Kares, since the Torah never removed the Isur Eshes Ach from them. Similarly, Rebbi Yochanan argues and maintains that the other brothers remain prohibited to the other wives only through an Isur Lav because "the Yavam took his Yevamah as a "Shali'ach" for all of his brothers and for all of her Tzaros" (and just like the Torah removed the Isur Kares for him when he took her, so too it removed the Isur for all of the others). It is the Yibum that removes the Isur Kares; the Isur does not become annulled at the time of the death of the brother, as one would expect if it was "Hutrah."

This approach is also evident in the words of RASHI (52b DH Nasan), who writes that the Yavam cannot be Mekadesh the Yevamah with normal Kidushei Kesef since she is "Eshes Achiv," and Kidushin cannot be made with an Ervah. (See also TOSFOS, top of 49b.) Further support can be brought from the opinion of Aba Shaul (Yevamos 39b), who maintains that one who performs the Mitzvah of Yibum with ulterior motives, is "close to living with an Ervah." If the Torah permitted this woman to the Yavam, how can the Yavam's intentions affect her Heter? What does she have in common with an Ervah?

For these rasons, Tosfos understood that Yibum can indeed be interpreted in terms of "Aseh Docheh Lo Ta'aseh." The reason Bi'ah Sheniyah is permitted (the Yavam does not have to immediately divorce her) and the reason he may re-marry the Yevamah after divorcing her, is because the Torah extends the Heter of the Yevamah *after* the initial Dechiyah of her Isur through the Mitzvah of Yibum (see 8b, and TOSFOS DH Melamed). The initial act is one of Dechiyah, only afterwards does the Torah remove the Isur Eshes Ach entirely, so that the Yavam may raise a family from his brother's wife.

The other Rishonim perhaps do not argue with Tosfos that the general Isur of Eshes Ach remains until the moment of Yibum. Nevertheless, they maintain that the Torah permits performing an "act of Yibum" with the Eshes Ach from the moment the childless brother passes away. (M. Kornfeld)


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