THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
YEVAMOS 26 - dedicated by Lee and Marsha Weinblatt of Teaneck, N.J. May they
be blessed with health and happiness, and see their children and
grandchildren ever grow in Torah and Yiras Shamayim!
1) PERMITTING THE CHACHAM TO MARRY A WOMAN WHOM HE ENABLED TO GET DIVORCED
QUESTION: The previous Mishnayos (25a, 25b) state that in a case of a man who
enabled a woman to become divorced from her husband (such as a Chacham who
did not annul a woman's vow against her husband, thus requiring that she get
divorced; a Shali'ach who brought a Get from abroad and, based on his
testimony to the validity of the Get, the woman is able to remarry; a single
witness who testified that a woman's husband died, thus permitting her to
remarry), the man is prohibited from marrying the woman whom he enabled to
remarry, since we suspect that he might have had lied since he had improper
motives for permitting her. The Mishnah here (26a) states that if the
Chacham, Shali'ach, or single witness was married at the time that he enabled
the other woman to remarry, and later his wife died, then he is permitted to
marry the woman whom he had permitted.
2) MARRYING A WOMAN WHO HAS BEEN DIVORCED TWICE
The Gemara infers from the Mishnah that he is permitted to marry the other
woman only if his own wife dies, but not if he divorces his wife. If he
divorces his wife, we suspect that perhaps he divorced her in order to marry
the woman whom he permitted. The Gemara questions this from a Beraisa which
says that even if he later divorces his own wife, he may still marry the
woman whom he permitted.
The Gemara answers that it depends on whether or not there was a dispute
between the Chacham and his own wife. The simple meaning of the Gemara is
that if the Chacham divorced his wife because of a dispute that existed at
the time that he permitted the other woman to remarry, then it is prohibited
for him to marry her because we suspect that he was planning to divorce his
wife at the time that he permitted her, and he permitted her only in order to
marry her himself. But if the Chacham divorced his wife without having any
argument at all at the time he permitted the other woman, then we do not
suspect that he permitted the other woman in order to marry her (because he
presumably had a content marriage). That is, we only suspect that he wants to
permit the other woman because he needs a new wife; we do not suspect that he
will choose to destroy his presently content marriage in order to marry this
RASHI (DH Ha), though, says that if there was a previously existing argument
between the Chacham and the wife, then we *permit* him to marry the other
woman, because at the time that the argument started, he was not aware of the
other woman. But if at the time he permitted the other woman to remarry there
was no argument between him and his wife, and then at a later time he
divorces his wife, we do *not* permit him to marry the other woman, because
we suspect that he might have had in mind to marry her when he permitted her
(and that is why he later divorced his wife). We suspect that even if he did
not need a new wife at the time that he permitted the other woman, when he
met her he became more interested in her than in his own wife and decided to
discard his old wife in favor of the new woman.
Why did Rashi explain the Gemara this way? It seems clear from the Mishnayos
that even if the Chacham was not married at the time he permitted the other
woman and had no wife to divorce, he is not allowed to marry the woman
because it looks like he permitted her with improper motives, even though he
did no action to lead us to that conclusion (other than marrying the woman).
Why does Rashi say that if he was arguing with his wife before he permitted
the other woman, then he is permitted to marry the other woman, because we
have no grounds to assume that he is divorcing his wife *because* of the
other woman? Even if he divorces his wife for a pre-existing reason, we
should still suspect that he had improper motives when permitting the other
Furthermore, the NIMUKEI YOSEF (who explains the Gemara like Rashi), cites
the Yerushalmi that says that if the wife was ill at the time the Chacham
permitted the other woman to remarry, then he may not marry that woman. What
is the difference between having a dispute with his wife, in which we do not
suspect him of permitting the other woman with improper motives, and a case
when his wife is ill, in which case we do suspect him of improper intentions?
In either case, we should suspect that he has in mind marrying the other
woman when he permits her to remarry! (YAM SHEL SHLOMO 2:21; BEIS SHMUEL EH
12:8; VILNA GA'ON EH 12:9)
ANSWER: The KORBAN NESANEL (2:12:50) answers that our Mishnah which does not
permit him to marry a woman after divorcing his wife, does permit him to
marry a woman after his wife dies. If the prohibition to marry the other
woman applies in the case when there is discord existing between the wife and
the husband, then the cases of divorcing his wife, and his wife dying, are
exactly the same; if the Chacham expected that his wife would be divorced or
would die, then he is prohibited from marrying the other woman, since we must
assume that had her in mind when he permitted her to remarry! Why, then, does
the Mishnah limit the Heter to when his wife dies? It must be that there is a
difference between death and divorce. In the case of divorce, even if he was
*not* arguing with his wife at the time that he permitted the other woman to
remarry, he is not permitted to marry that woman, since he might have
divorced his wife intentionally in order to marry the other woman.
What, though, is the reason that we are more *lenient* in the case of
divorce, permitting the Chacham (or courier, or witness) to marry the woman
he permitted even though he was *already quarreling* with his wife? As the
Nimukei Yosef wrote, in the case of death, when the wife was sick at the time
that he permitted the other woman to remarry, he is *not* allowed to marry
that woman. It would seem logical to suspect him in both cases of harboring
intentions to marry another woman!
(a) The Korban Nesanel suggests that when there is discord between him and
his wife, he does not expect to divorce her, because people always fight with
their spouses and do not always divorce them. But if his wife is very ill,
then we assume that he expects to marry someone new.
This logic, though, is unclear, because the Yerushalmi is not discussing a
situation when his wife is deathly ill, but "Cholanis." According to the
principle that "Rov Cholim l'Chayim," we normally presume that most sick
people will live. Thus, even if she dies later, we cannot assume that he had
in mind to marry someone else at the time that she was sick, when he
permitted the other woman to remarry. To the contrary, in the case of divorce
-- since there was marital discord and he eventually divorced his wife -- it
should be assumed that all along he was planning to divorce her, and thus we
should suspect him of harboring intentions to marry the woman whom he
permitted to remarry!
(b) Perhaps we can explain Rashi as follows. Rashi in the Mishnah (DH sh'Hayu
Lahem) says that when the Mishnah says, "they had wives but the wives died,"
this means that they died "after a long time" ("l'Achar Zman"). How did Rashi
know this? Perhaps the Mishnah means simply that the wife died, whether she
died a long time after he permitted the other woman to remarry, or shortly
thereafter. How does Rashi know that it was specifically "after a long time?"
One might suggest that Rashi is telling us the Chidush of the Yerushalmi,
that if his wife was already sick and nearing death at the time that he
permitted the other woman to remarry, then he may not marry the other woman.
However, it is unlikely that this is what Rashi is saying, because that has
nothing to do with *when* she dies, but rather with whether she was sick or
not at the time that he permitted the other woman to remarry. Why, then, does
Rashi say "l'Achar Zman?"
It could be that Rashi is answering our question. Rashi does not say "l'Achar
Zman" because of the case of the wife dying, but because of the case of
divorce. Rashi means that the reason the Mishnah omitted the wife becoming
divorced is because if the Chacham divorced his wife "after a long time,"
then we suspect that he had in mind to marry the other woman at the time he
permitted her, and he kept that thought in his mind until some time had
passed and the opportunity to divorce his wife without suspicion arose.
In such a case, the Beraisa tells us that if they had a dispute at the time
that he permitted the other woman, then it is *permitted* for him to marry
the other woman when he divorces his wife after a long time has passed. The
logic is that since he was fighting with his wife at the time he permitted
the other woman, if he really had in mind to marry the other woman, then he
would certainly have divorced his wife earlier (since it would not look
suspicious). The fact that he continued to stay married to her for so long
shows that he really did not have in mind to divorce his wife, and when he
permitted the other woman to remarry, he did so with proper intentions.
That is why Rashi says that the Mishnah is referring to "l'Achar Zman" --
because if the wife would have died immediately after he permitted the other
woman, then the *Beraisa* would not say "even if he divorced his wife" he is
permitted to marry the other woman, because if he divorced his wife *right
away*, it is *prohibited* for him to marry the other woman!
(c) The VILNA GA'ON (EH 12:9) argues with the Nimukei Yosef and asserts that
the Yerushalmi makes no such statement that in a case where his wife is ill
and then dies, it is prohibited for the Chacham to marry the other woman.
Rather, even if his wife is ill, he may also marry the other woman after his
wife dies, since he did not plan on his wife dying. Accordingly, in a case of
divorce, even though he and his wife were fighting he presumably did not
think that their quarrel would lead to divorce.
YESHU'OS YAKOV, cited by the PISCHEI TESHUVAH there, suggests a similar
approach, asserting that even according to the Yerushalmi a man does not
expect his wife to die just because she is sick. Rather, if his wife is sick
he needs another wife to tend to his needs, and that is why he is suspected
of permitting the other woman deceitfully. If so, it may easily be suggested
that there is no reason to suspect he planned on divorcing his wife just
because they were quarreling.
QUESTION: The Mishnah states that in the case of a man who enabled a woman to
become divorced, if that woman then married someone else and then her husband
died or divorced her, she is then permitted to marry the man, such as the
Chacham, Shali'ach, or single witness, who permitted her to remarry in the
first place. The Gemara explains that the Mishnah does not mean that the
widow (in the case when a single witness enabled her to remarry by testifying
that her husband died) may marry the witness after her second husband dies
(but rather, only if he divorces her), nor does the Mishnah mean that the
divorcee (in the case when a Chacham or Shali'ach enabled her to get
divorced) may marry the Chacham or Shali'ach after her second husband
divorces her (but rather, only if he dies). In those two cases, a third man
is not permitted to marry her because of Rebbi's ruling. RASHI explains that
Rebbi's ruling was "there is a Chazakah that she causes her husbands to die
or to divorce."
It is clear from Rashi that not only does a Chazakah of two dead husbands
prohibit a third man from marrying her, but also a Chazakah of two divorces
prohibits a third man from marrying her. This is also the implication of the
Gemara which says that the Mishnah cannot be permitting her to remarry after
she was divorced twice.
How can Rashi say that being divorced twice prohibits a third man from
marrying her? The Gemara later (64b) says that Rebbi's logic for prohibiting
a woman after two deaths is either because of "Ma'ayan Gorem" or "Mazal
Gorem" -- either her Nidah flow is a physical factor causing her husbands to
die, or her inauspicious Mazal causes them to die. The Gemara says that a
difference between the two reasons is a case where her husband died after
Erusin, before the woman moved into her husband's house: according to the
opinion that "Ma'ayan Gorem," if the husband died after Erusin, that does not
count towards making a Chazakah that she causes her husbands to die.
We can understand how "Mazal Gorem" can be applied to divorce; after two
divorces, it is evident that she has an inauspicious Mazal that causes her to
get divorced. How, though, does "Ma'ayan Gorem" apply to divorce? If it
indeed does not apply to divorce, then the Gemara there should have said that
this is another difference between "Ma'ayan Gorem" and "Mazal Gorem!" (VILNA
GA'ON and BE'ER HETEV, EH 9:8)
Moreover, even if the woman has established a Chazakah to get divorced, why
should that prohibit a third man from marrying her? At worst, she will get
divorced a third time. Why should it be *Asur* to marry her?
ANSWER: Even though the literal argument of "Ma'ayan Gorem" does not apply to
divorce, it may certainly be suggested that the woman's physical nature is to
blame for her recurring divorce; perhaps she is easily excitable. Therefore,
both the opinions that "Mazal Gorem" and "Ma'ayan Gorem" agree that two
divorces will give her a Chazakah that she will get divorced again, either
because of her Mazal, or because her physical nature causes her to get into
arguments and get divorced.
Regarding why one should not marry a woman who has a Chazakah to get
divorced, it could be that it is not prohibited per se, but merely the
Chachamim are giving good advice, "Etzah Tovah," not to marry a woman who has
been divorced twice (YASHRESH YAKOV); the Gemara is asking that the Mishnah
would not tell her that she can marry a third man l'Chatchilah if doing so
goes against the better judgment of the Chachamim and is discouraged.
HALACHAH: We rule like Rebbi in a situation of a mortal danger, such as in
the case of marrying a woman who has had two husbands who have died, and we
follow a Chazakah after only two incidents have established that Chazakah.
The REMA cites Rashi (EH 9:1) that applies this Halachah to a case of a woman
who was divorced twice, but afterwards he cites TOSFOS (DH a'Gerushin) and
the other Rishonim here, who, despite the implication of our Gemara, argue
with Rashi and say that Rebbi prohibits remarriage only after being widowed
twice, and not after being divorced twice. The Rema concludes that the
opinion of Tosfos is the proper one ("v'Chen Ikar").
3) A "CHALITZAH PESULAH"
QUESTION: Rav says that when three sisters fall to Yibum to two brothers, one
brother does Chalitzah with one sister, the other brother does Chalitzah with
the second sister, and then both brothers must do Chalitzah with the third
sister. The Gemara says that we learn from this statement that Chalitzah with
one's "Achos Chalutzaso" (the sister of a woman with whom he did Chalitzah)
is considered a "Chalitzah Pesulah," and whenever a Chalitzah Pesulah is
performed, it must be done by all of the brothers in order to take effect and
release the woman from the requirement of Yibum (this is because the bond of
Zikah is too strong to be broken by a Chalitzah Pesulah).
"Chalitzah Pesulah" is defined as a Chalitzah done by a brother who could not
have done Yibum. In our case, the Chalitzah done with the third sister is a
Chalitzah Pesulah, because neither brother could do Yibum with her, since she
is Asur to both brothers because of "Achos Chalutzaso" (she is the sister of
the women with whom each brother did Chalitzah).
Rashi cites another Girsa which he rejects. According to that Girsa, the
Gemara infers from the *beginning* of the Beraisa that Chalitzah Pesulah must
be done by all of the brothers. The beginning of the Beraisa says that each
brother does Chalitzah with one sister. Why can one brother not do Chalitzah
with all of the sisters? It must be because once he does Chalitzah with one
sister, all of the other sisters are Asur to him from doing Yibum because of
"Achos Chalutzaso" (and thus in order to release them, they need Chalitzah
either from another brother who can do Yibum with them, or they need
Chalitzah Pesulah from all of the brothers).
Why does Rashi reject that Girsa? That seems to be just as valid a proof that
a Chalitzah Pesulah must be repeated by all of the brothers!
ANSWER: TOSFOS (DH mid'Ka'amrit), the RAMBAN, and other Rishonim explain that
the second sister certainly needs Chalitzah from the second brother, even if
a Chalitzah Pesulah does not need to be given by all of the brothers. This is
because the second sister *could* get a perfectly valid Chalitzah from
someone who could do Yibum with her -- the second brother. And everyone
agrees that in a case where she could either get a perfectly valid Chalitzah
or a Chalitzah Pesulah, she must get the better Chalitzah. (As we see on 27a,
that if it is possible to do a good Chalitzah, then one may not do a
Chalitzah Pesulah.) Therefore, the Gemara brings the proof from the third
sister, where there is no brother with whom she could do a proper Chalitzah,
and thus she does a Chalitzah Pesulah and it must be done by all of the