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Yevamos, 19


QUESTION: Rebbi Oshiyah states (18b) that Rebbi Shimon permits Yibum in a case of "Nolad v'Achar Kach Yibem:" when the first brother (Reuven) died, and the second brother (Shimon) had not yet performed Yibum when a newborn brother (Levi) was born. In such a case, asserts Rebbi Oshiya, Rebbi Shimon permits Levi to do Yibum when Shimon dies, childless, after doing Yibum with Reuven's wife. Rebbi Shimon's reasoning is that "Yesh Zikah" -- the bond of Zikah is comparable to the bond of marriage in bonding the woman who falls to Yibum. Since at the time the woman fell to Yibum she was considered "bonded" to Shimon with a marriage-like bond, the birth of Levi at that time is not considered a case of "Eshes Achiv she'Lo Hayah ba'Olamo."

The Gemara challenges Rebbi Oshiya's assertion that Rebbi Shimon holds "Yesh Zikah" from a Mishnah (31b). The Mishnah presents a case of three brothers who were married to three unrelated women. Reuven died, and Shimon did "Ma'amar" with Reuven's wife, and then he died. Rebbi Shimon states that the remaining brother may do Yibum with either widow (of Reuven or Shimon) and do Chalitzah with the other one. The reason why, according to Rebbi Shimon, the brother cannot do Yibum with both of them, nor may he do Yibum with only one of them and exempt the other one entirely, is because Rebbi Shimon holds "*Ein* Zikah," and he is in doubt whether "Ma'amar" is considered powerful enough to give the Yevamah the status of Shimon's full-fledged wife.

Abaye answers this question by saying that Rebbi Shimon distinguishes between a case of a woman who falls to Yibum to *two* brothers* and when she falls to Yibum to only *one* brother. There *is* Zikah when she falls to only one brother, but there cannot be Zikah when she falls to two brothers (just like there cannot be a bond of marriage between one woman and two men).

The Gemara challenges Abaye's answer that Rebbi Shimon distinguishes between Zikah to two brothers and Zikah to one brother. A Beraisa quotes Rebbi Shimon as saying that if Levi is born before Shimon does Yibum, then Levi is exempt from Yibum and Chalitzah, and it is a case of "Eshes Achiv she'Lo Hayah ba'Olamo." The Gemara says that according to the simple reading of the Beraisa, the Beraisa is referring to a case where there was only one brother besides Levi, and yet Levi is still considered to be "Achiv she'Lo Hayah ba'Olamo" because there was no Zikah between Shimon and the Yevamah! We see from there, asks the Gemara, that even when there is only one brother, Rebbi Shimon says "Ein Zikah!"

The Gemara answers that the Beraisa is actually discussing a case where there were *two* other brothers. Hence, in that case Rebbi Shimon says that there is no Zikah, and that is why Levi is considered an "Achiv she'Lo Hayah ba'Olamo."

Why does the Gemara ask this question from the Beraisa now, in response to Abaye's statement that Rebbi Shimon differentiates between a case of one surviving brother and two surviving brothers with regard to Zikah? The Gemara should have cited this Beraisa at the beginning of the Sugya, as a direct challenge to the view of Rebbi Oshiya! The Beraisa says clearly that Rebbi Shimon agrees -- in a case where Levi was born before Shimon did Yibum -- that "Ein Zikah" and Levi is prohibited to the Yevamah because of "Eshes Achiv she'Lo Hayah ba'Olamo!" Before being told of the difference between one brother and two brothers the Gemara could have presented an even greater challenge to Rebbi Oshiya's statement from this Beraisa!

ANSWER: The RAMBAN writes that the introductory words that precede the Gemara's question from the Beraisa, "u'Mi Shani Lei l'Rebbi Shimon" -- "Does Rebbi Shimon really differentiate [between one brother and two brothers]?" are not actually the basis for asking the question from the Beraisa. The Gemara is really asking its question from the Beraisa directly on Rebbi Oshiya's explanation of Rebbi Shimon. (That is, the Gemara is aking "will differentiating between one and two Yavams really answer all questions on Rebbi Oshiya?") The question of the Gemara is how Rebbi Oshiya can say that Rebbi Shimon holds "Yesh Zikah" when the Beraisa clearly shows that Rebbi Shimon holds "Ein Zikah."

If this is true, though, then why does the Gemara not ask from this Beraisa first? This Beraisa is the clearest source that Rebbi Shimon holds "Ein Zikah!" The RASHBA offers several answers:

(a) The reason why this Beraisa is the second question, and not the first question posed to Rebbi Oshiya, is because the first question that it asks is from a Mishnah (31b), whereas this question is from a Beraisa. The general rule is that it is better to ask a question from a Mishnah, even if it is only from an inference, than to ask a question from a Beraisa, even if it is more explicit.

(b) The Rashba suggests further that the first question was stronger because it shows that Rebbi Shimon is in doubt whether or not there is Zikah even after doing "Ma'amar."

(c) Finally, the Rashba suggests that Rav Yosef -- who was the one who asked the first question -- did not know this Beraisa. The Gemara (and not Rav Yosef) cites the Beraisa now, and asks from it a question on the opinion of Rebbi Oshiya.


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