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Yevamos, 18

YEVAMOS 17 & 18 - these Dafim have been sponsored by Joseph Goldberg, of Zichron Yakov, Israel.


The Gemara records a Machlokes between Rav Huna in the name of Rav and Rav Yehudah regarding whether "Yesh Zikah" or "Ein Zikah" -- is the bond of Zikah comparable to the bond of marriage in bonding the woman who falls to Yibum (the Yevamah) and the surviving brother (the Yavam)? Rav Huna in the name of Rav maintains "Ein Zikah," and Rav Yehudah maintains "Yesh Zikah."

The Gemara points out that Rav Yehudah, who maintains "Yesh Zikah," did not say so explicitly. Rather, his opinion is inferred from a Halachic ruling of his. Rav Yehudah says that if a Yevamah dies before doing Yibum, the Yavam may not marry her mother. The reason is because "Yesh Zikah" -- there is a bond of Zikah connecting him to the Yevamah, and just like one may not marry the mother of one's wife, one may not marry the mother of one's Yevamah. The Gemara explains that the reason why Rav Yehudah did not say simply "Yesh Zikah" is because had he said "Yesh Zikah" we might have thought that there is Zikah only when both the Yevamah and Yavam are alive (and only when the Yevamah is still alive would it be prohibited for the Yavam to marry her mother), but after the Yevamah has died there is no Zikah and the Yavam could marry the Yevamah's mother. We might have thought that after her death, any bond of Zikah is removed *retroactively* since he can no longer do Yibum or Chalitzah with her. Rav Yehudah teaches that not only is there Zikah, but the Zikah is not removed retroactively.

The Acharonim (see OR SAME'ACH in Kuntrus Zikah, YASHRESH YAKOV) point out that although the Gemara rejects the possibility of the Zikah being uprooted retroactively, it is not an entirely remote possibility (as Tosfos 17b DH Aval would seem to imply). We do find the Zikah being uprooted retroactively in certain cases, and in other cases it seems to be a subject of debate among the Amora'im.

(a) RASHI (17b, DH v'Leima) explains that if a man dies childless and his wife falls to two brothers for Yibum, and then one of the brothers is Mekadesh (with Kidushin, but not yet with Nisu'in) the sister of the Yevamah, thereby making the Yevamah an Ervah to him ("Achos Ishto"), we tell that brother to delay doing Nisu'in with the sister because she is "Achos Zekukaso," the sister of the woman who has a bond of Zikah with him and is thus Asur to him mid'Rabanan. Rather, he should wait until the other brother does Yibum (or Chalitzah), and then, says Rashi, "the Zikah is removed" and the first brother may now fully marry the Yevamah's sister. The Gemara (18b) explains that this follows the opinion of Rav Yehudah that "Yesh Zikah" and that is why the sister of the Yevamah ("Achos Zekukaso") is Asur to the brother.

However, the Gemara just taught that even when the Yevamah dies, the Yavam remains Asur to her mother, because the Zikah does not fall away. Likewise, in the case that Rashi discusses, when the other brother does Yibum, the first brother should remain Asur to the sister of the Yevamah even after the second brother does Yibum or Chalitzah, just like one is Asur to the sister of a woman that one divorced!

It is clear that doing Yibum removes the Zikah retroactively from the other brothers (and from the Tzaros as well). Even though the Gemara earlier (10b) says that, according to Rebbi Yochanan, the brother who does Yibum or Chalitzah acts as the Shali'ach on behalf of all of the brothers, nevertheless it is not as if the other brothers are actually performing the Yibum; rather, the brother who does Yibum does it *for himself*, for the other brothers, so that the Zikah is removed from them -- and from the Tzaros of the Yevamah -- even retroactively.

When our Gemara says that Zikah is not removed retroactively, it means that only Yibum or Chalitzah can remove the Zikah retroactively from the other brothers and the other Tzaros, but not *death*. The death of the Yevamah or the Yavam cannot remove the Zikah retroactively (because had the person been alive he might have opted to do Yibum or Chalitzah).

(b) According to the RASHBA, all of the questions of the Gemara (18a) -- which it asks when it challenges the view of Rav Yehudah who says that it is Asur for a brother to marry the mother of a Yevamah after the Yevamah dies -- are not intended to prove that Rav Yehudah is incorrect and "Ein Zikah." Rather, the Gemara agrees that "Yesh Zikah," but it is trying to prove that Zikah *is* retroactively removed if the Yavam or Yevamah dies.

If the Zikah is removed retroactively, then the Mishnah (17a) works out smoothly. The Gemara questions the opinion that says "Yesh Zikah" from the end of the Mishnah. The Mishnah implies that if Levi is born before Shimon does Yibum, and Shimon dies without doing Yibum, Levi does Yibum or Chalitzah with Shimon's wife.

Asks the Gemara, why do we not say that Shimon's wife is a "Tzaras Ervah b'Zikah" (the Tzarah of a woman who is an Ervah through Zikah), since the wife of Reuven who was Asur to Levi (because of "Eshes Achiv she'Lo Hayah ba'Olamo") was Zekukah to Shimon? The Gemara means to prove from this that the Zikah is removed retroactively when Shimon dies. If the Zikah was removed retroactively, then Shimon's wife was *not* a "Tzaras Ervah b'Zikah," since there was no Zikah, as it was removed from her retroactively when Shimon died.

Similarly, the Gemara asks a contradiction in the opinion of Rebbi Meir, who in one case says that if Levi was born before Shimon died and Shimon died without doing Yibum to Reuven's wife, then Levi is allowed to do Yibum with Shimon's wife, which means that Shimon's wife is not considered a "Tzaras Ervah b'Zikah" to Levi; we do not view the Zikah (of Reuven's wife to Shimon) as making her a Tzarah of Shimon's wife. On the other hand, Rebbi Meir says that if two sisters fall to Yibum from two different brothers, the brothers must do Chalitzah and are not allowed to do Yibum. This implies that each woman is considered "Achos Zekukaso" and is Asur to each brother, and that is why they cannot do Yibum.

Here, too, explains the Rashba, the Gemara is trying to prove that Zikah is retroactively removed when the Yavam dies. That is why, in the first case, when the Yavam (Shimon) died, there was no Zikah and Shimon's wife was not a "Tzaras Ervah" through Zikah. But in the second case, none of the Yevamim died, and since Chalitzah or Yibum will be done, the Zikah remains in force and the two sisters are Asur to the brothers because of "Achos Zekukaso" and therefore they must do Chalitzah.

(c) Although our Gemara answers its questions (on Daf 18a) and rejects the proofs that Zikah is removed retroactively, the OR SAME'ACH (ibid.) shows at length that the Yerushalmi in many places says that this initial suggestion of our Gemara -- that Zikah is removed retroactively even by the death of the Yevamah or Yavam -- is true and conclusive. That is, the Yerushalmi maintains, contrary to the Bavli, that Zikah *is* removed retroactively after the death of the Yavam or Yevamah.

RAV MEIR ARIK (in TAL TORAH, Yerushalmi Yevamos 1:1, 3b) offers a beautiful explanation for a Yerushalmi in Kidushin (3:5, 31b) based on this. The Mishnah there (see Kidushin 62a, Yevamos 92b) says that if a man says to a married woman, "I am hereby Mekadesh you [beginning from a future date] after your *husband dies*" or "after your *Yavam does Chalitzah* with you," the Kidushin does not take effect because he is trying to be Mekadesh a "Davar she'Lo Ba la'Olam." (That is, he is trying to be Mekadesh a woman who cannot accept Kidushin until a future moment, since she is presently married or Zekukah to another person).

The Gemara in the Yerushalmi says that the Mishnah specifically mentions that the man said to the woman "after your Yavam does Chalitzah with you," but *not* "after your Yavam dies," because in such a case the Kidushin *would* take effect after the Yavam dies (since it was possible for the Kidushin to take effect even *before* he dies).

What is the difference between after the Yavam does Chalitzah and after the Yavam dies? In both cases, the woman at the time of the Kidushin is a "Davar she'Lo Ba la'Olam" and cannot accept Kidushin (as the Bavli indeed says in both cases)!

The answer is that the Yerushalmi maintains that the Zikah is removed retroactively after the death of the Yavam. Thus it turns out that the Yevamah was able to become married to someone else all along, although she didn't know it at the time, and since it was possible to be Mekadesh her at the time, she was not a "Davar she'Lo Ba la'Olam." If the Yavam performs Chalitzah, though, the Zikah is not removed retroactively and therefore Kidushin cannot be performed with her until after the Chalitzah! (This shows, also, that the Zikah is not only removed retroactively with regard to the bond between the Yevamah and the Yavam. Even with regard to the prohibition for the Yevamah to marry out it is removed.)


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