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Yevamos, 13

YEVAMOS 13 - Dedicated by Sid and Sylvia Mosenkis of Queens, NY, in memory of Sylvia's father, Shlomo ben Mordechai Aryeh, who passed away 3 Teves 5751/1990.


QUESTION: The Gemara says that if Reuven's wife is a Ketanah who is an Ervah to Reuven's brother Shimon (for example, she is Shimon's daughter), and Reuven dies, then the Tzarah needs to do Chalitzah. Even though, normally, when an Ervah and her Tzarah fall to Yibum, the Ervah exempts the Tzarah completely, in this case the Tzarah is not exempted completely, because the Ketanah has the ability to uproot her relationship through "Mi'un," thus making the Tzarah *not* a Tzarah of an Ervah.

The Gemara explains that even if the Ketanah does Mi'un, the Tzarah may not do Yibum, because from the time that their husband died, it appears that she is the Tzarah of Shimon's daughter, since his daughter originally fell to Yibum. In order to prevent people from mistakenly permitting the Tzarah of one's *adult* daughter who falls to Yibum, the Rabanan prohibited the Tzarah of one's daughter who is a Ketanah Mema'enes from doing Yibum.

RASHI (DH Hachi Nami; 12a DH mi'She'as Nefilah and DH Mishum Tzaras Bito) explains that the Mi'un which the Gemara is discussing is that the girl does Mi'un to her father to whom she fell to Yibum, saying that she does not want the original Kidushin to be in effect because it will cause her to fall to her father for Yibum.

How could the girl do Mi'un to her father? She does not fall to Yibum at all since she is an Ervah to him! She has no Zikah to her father to remove through Mi'un!

More generally, we can ask that even if the Mi'un that the girl does is not to her father as Rashi explains, but is to her original husband (who died), is there such a thing as doing Mi'un on a marriage that no longer exists? Can she do Mi'un to the first husband after he has died and nothing is left of the marriage?


(a) The RITVA (12a) cites Rashi and explains that indeed, Rashi is not saying that the girl does Mi'un to the relationship that she now has with her father as a result of Zikah, because there is no Zikah to her father. Rather, Rashi means that because she says she is doing an act of Mi'un, it revokes the original Kidushin with her dead husband. It appears that the Ritva holds that Mi'un could be done after the husband has died, and, according to the Ritva, that is also what Rashi is saying.

(b) The Ritva cites other Rishonim who seem to maintain that Mi'un works only to uproot a marriage that still exists. Mi'un cannot uproot a marriage when it no longer exists due to the death of the husband. The case in which the Gemara suggests that the daughter of the Yavam will do Mi'un after the death of her husband is when there are other brothers besides the father, and thus there is a proper Zikah to the other brothers. Since there is a Zikah to the other brothers, she can do Mi'un with one of *them* to remove the Zikah.

(c) From Rashi's words, though, it does not seem that Rashi either of these two explanations reflect Rashi's intention. Rather, perhaps Rashi means as follows: in a normal case of an Ervah who falls to Yibum, the way that the Ervah removes the Zikah from all of the Tzaros is by falling to the Yavam and then uprooting the Zikah -- entirely, even for the Tzaros. If, on the other hand, the woman who is exempt from Yibum does not fall to Yibum at all to begin with (such as an Aylonis; see Insights to 12a), then she does not exempt the Tzaros at all. In this case, though, the Ervah falls to Yibum and then uproots the Zikah.

When Rashi says that the girl does Mi'un to her father, he is saying that she wants to avoid the first stage of falling to the father for Yibum in the first place, so that she will not uproot the Zikah entirely, leaving the Tzarah obligated to do Yibum or Chalitzah.

How, though, can she do Mi'un for a marriage that is already over? Even if it can be said that the daughter potentially "falls" to Yibum to her father before the Zikah is removed, by the time she performs Mi'un to her father she certainly has no Zikah to him? The answer is that as long as there are some effects left from the fact that she fell to her father for Yibum when her husband died, she can still do Mi'un to retroactively prevent herself from falling to him. In this case, her initial falling to Yibum effected a removal of the Zikah and an exemption for her Tzarah from Yibum and Chalitzah. Therefore, she can still do Mi'un in order to prevent falling to him, and she thereby obligates her Tzarah to do Yibum.

We find a similar concept in Nedarim. One may not rescind a Neder after it is no longer pertinent (for example, he vowed not to eat a certain item, and then he ate the item, and now he wants to rescind his Neder through Hataras Nedarim). However, if witnesses warned him before he ate the item and transgressed the Neder, and now, for transgressing it, he is Chayav Malkus, he can still annul the Neder to prevent the *effects* of the Neder (i.e. the Malkus) from taking place, thereby exempting himself from Malkus.


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