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Yevamos, 10

YEVAMOS 10 (Chanukah) - has been sponsored through the donation of Alex and Helen Gross of Rechavya, Jerusalem; may the light of the Torah always light their home and the homes of their descendants!


The Gemara discusses the status of the surviving brothers and the wives (Tzaros) of the deceased brother after Chalitzah was done by one of the brothers with one of the Tzaros. Reish Lakish says that all of the brothers are prohibited to all of the Tzaros with an Isur Kares (the Isur of "Eshes Ach"), with the exception of the brother and the woman who did Chalitzah, who are prohibited to each other only with a normal Lav (the Isur of "Lo Yivneh"). Rebbi Yochanan argues and says that they are all Asur to each other only with a Lav, and not with Kares.

The Gemara explains Rebbi Yochanan's reasoning. Rebbi Yochanan reasons that it does not make sense that one brother (the one who did Chalitzah) should be Asur only with a Lav, while the other brothers have an Isur Kares, since they were all equally entitled to do Chalitzah. Rather, it must be that the brother who did Yibum did it as the Shali'ach of all the other brothers, and the woman who did Chalitzah did it as the Shali'ach of all the Tzaros.

We see that Rebbi Yochanan maintains that the Isur Kares of "Eshes Ach" falls away completely in a situation of Yibum, when one brother dies and his wives fall to Yibum (or Chalitzah) to the other brothers. According to Rebbi Yochanan, at what point is the Isur Kares of "Eshes Ach" of all the wives removed? Is it removed as soon as the brother dies, or only when a surviving brother does Chalitzah? There seem to be conflicting implications from the words of the Gemara.

The first part of the description of Rebbi Yochanan's reasoning, which says that the Isur should be removed since *initially* any of the brothers could do Chalitzah (or Yibum), implies that even before anyone does Chalitzah, the Isur Kares is removed (since they *could* perform Chalitzah or Yibum). On the other hand, from the end of the description of his reasoning, which says that the Yavam and Yevamah who do Chalitzah (or Yibum) are acting as Shelichim for the others, it seems that the act of Chalitzah is what removes the Isur Kares, and until that act is done, the Isur is still in force!


(a) From the words of TOSFOS (10b, DH Ihu), it seems that the Isur of "Eshes Ach" remains in force until the Chalitzah is performed, and the Chalitzah then removes the Isur. When Rebbi Yochanan says that when the wife falls to Yibum, any brother may do Chalitzah, it does not mean to imply that there is no Isur of "Eshes Ach," but merely that it is *logical* that the Torah did not give a Mitzvah to the brothers from which they could excuse themselves and pass on to another brother. Rather, the brothers never actually remove themselves from the obligation. Whichever brother does Chalitzah (or Yibum), does it on behalf of all of the others as well.

This also appears to be the opinion of RASHI (52a, DH Nasan), who calls the Yevamah an "Eshes Ach" even during the period of Zikah.

Further support for this can be adduced from the opinion of Aba Shaul (39b), who argues with the Rabanan and says that it is better to do Chalitzah than Yibum because if one does Yibum with impure intentions, "it is as if he lives with an Ervah and the child can almost be called a Mamzer." If the Isur of "Eshes Ach" is removed at the time that the woman falls to Yibum, before Yibum is done, then there is no Isur of Ervah whatsoever and no reason to say that the child is "close to being a Mamzer." (See also Insights to 7:1:b)

(b) However, the RASHBA (41a, end of DH Shomeres Yavam) writes that Rebbi Yochanan's statement, "If this [brother] wants to do Chalitzah, then he may do it, and if this one wants to do Chalitzah, then he may do it," implies that the Isur of "Eshes Ach" actually falls off as soon as it is permitted for the brothers to do Yibum. According to the Rashba, why does Rebbi Yochanan have to add that the brother is doing the Shelichus of all the other brothers? Even if he is not doing Chalitzah or Yibum on their behalf, the Isur of "Eshes Ach" was already removed from them!

Furthermore, how does the Rashba understand the opinion of Reish Lakish who says that all of the other brothers have an Isur Kares with the woman when one brother does Yibum with her? The Rashba could not have learned that the Isur Kares is removed and then returns to the other brothers when one brother does Yibum, because the Rashba himself (ibid.) asserts that once the Isur of "Eshes Ach" is removed, it cannot return.

The Acharonim offer two approaches to these questions. The simple approach is that the reason Rebbi Yochanan says that one brother is acting as Shaliach for the others is not to explain that the Isur of "Eshes Ach" is removed (for it is not removed at that point, but earlier, at the time she falls to Yibum). Rather, the fact that one brother acts as Shaliach for the others explains why the other brothers acquire the prohibition of "Lo Yivneh." Even though the verse implies only that the one who did Chalitzah may not marry her and attempt to "rebuild" his brother's house, Rebbi Yochanan says that all of the brothers and Tzaros have an Isur of "Lo Yivneh" because of the Shelichus.

The implication of the words of the Rashba is that Reish Lakish indeed argues and holds that even though the Isur of "Eshes Ach" is removed at the time that the wives fall to Yibum, nevertheless the Isur *could* return even if it was once removed. Therefore, when one brother does Chalitzah or Yibum, the Isur returns to the other brothers. (This also appears to be the intention of the Rashba on 44a, DH v'Nachlotz, which appears in the Mosad Rav Kook edition of the Rashba).

A second approach is suggested by RAV ELCHANAN WASSERMAN in KOVETZ HE'OROS (4:9, 1:7). From the Yerushalmi it seems that when one brother does Yibum or Chalitzah, that determines retroactively that the other brothers were not involved with the Zikah at all. Perhaps that is the intention of Reish Lakish, who is saying that the other brothers have an Isur Kares, because once one brother has done Yibum, it turns out that he was the only one who had the Heter. We only know which brother has the Heter after it is actually utilized by one of them.

Rebbi Yochanan also agrees that in theory, the Zikah would be retroactively removed from any brothers and Tzaros not involved in the Chalitzah. However, he holds that because of the Shelichus, they are all considered to be involved in the Zikah even retroactively, and thus the Isur of "Eshes Ach" is removed from all of them. (According to this approach, that Rebbi Yochanan agrees that Zikah can be removed retroactively, it is not clear what he is trying to prove from the words "If this [brother] wants to do Chalitzah, then he may do it...;" how can he prove from there that the Zikah applies *retroactively* to all of them?)

How will the Rashba understand Aba Shaul's statement (that it is better to do Chalitzah than to do Yibum)? The Kovetz he'Oros (ibid.) says that either the Rashba is discussing only the opinion of the Rabanan, or, more likely, he understood that Aba Shaul's ruling is only d'Rabanan.

In conclusion, we find that there is a basic difference in understanding between RASHI and TOSFOS and the RASHBA regarding whether the Isur of "Eshes Ach" is removed right away at the time the woman falls to Yibum, or whether it is removed only at the time of Chalitzah (or Yibum).

There might be important Halachic implications of this Machlokes as well. For example, if -- before performing Yibum -- the Yavam has relations with his brother's wife without being aware of what he is doing (such as while he is sleeping), in which case the Gemara (54a) says that he is not Koneh her. According to Rashi and Tosfos, she should become Pasul to eat Terumah, since she has had a forbidden relationship with an Ervah , while according to the Rashba, the act was not Asur at all, and thus she should remain Mutar to Terumah and Kehunah.

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