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Yevamos, 28

YEVAMOS 28 (19 Teves) - dedicated to the memory of Hagaon Rav Yisrael Avraham Abba ben Harav Chaim Binyamin Ze'ev Krieger ZT"L, author of Yad Yisrael (on Rambam) and many other Sefarim. Sponsored by his son, Reb Chananel Benayahu Krieger Krieger (Yerushalayim).


QUESTION: Rebbi Chiya states, "v'Kulan Ani Korei ba'Hen..." -- it is possible to apply the following Halachah to all of the cases in the Mishnah (2a): Two sisters married two brothers, and those two brothers died. One of the sisters is an Ervah to one of the remaining brothers (Levi), but is not an Ervah to the other remaining brother (Yehudah), while the other sister is an Ervah to Yehudah but not to Levi. In that case, each sister may do Yibum or Chalitzah with the brother to whom she is permitted, and there is no problem of "Eshes Zekukaso," since the other woman is not considered Zekukah to the man to whom she is Asur.

The Gemara says that Rebbi Chiya's Halachah can apply to the Ervah of "Bito" (his daughter) -- when each Yevamah is Asur to one of the brothers because she is his daughter, but she is Mutar to the other brother -- only in a case where she is his daughter through Onsin (rape) and not through Nisu'in (marriage). RASHI (DH b'Onsin) explains that the reason for this is that it is impossible for two brothers to have been married to the same woman in order to have two daughters who are sisters from the same mother, because the second brother cannot marry the woman that was married to the first brother (because she is "Eshes Achiv" from a brother who left behind children). Therefore, the only possible case of the two brothers having two daughters from the same woman is when they raped that woman and bore the two daughters.

Why does Rashi not give a more basic reason why the brothers could not have been married to the mother of their daughters? If the brothers had been married to the mother of their daughters, then both brothers would be Asur to both daughters because of the Isur of "Bas Ishto" (the daughter of one's wife)! It must be that the daughters came from a woman who was raped, and thus one brother is not Asur to the other's daughter as "Bas Ishto." This reason would also explain why -- even after the first brother raped the woman -- the second one also had to have raped the woman and not have been married to her, in order to avoid the problem of "Bas Ishto," whereas if the only problem is "Eshes Achiv," then there is no reason to say that the second brother raped the woman and was not married to her. (MAHARSHAL)

Rashi himself seems to have noted this, for he says that the second brother also raped the woman (and he does not say that only the first brother raped her, and the second brother married her). Why, then, does Rashi not give the reason of "Bas Ishto" as the reason why it is not possible to have two Yevamos who are the daughters of the two Yevamim through marriage?

ANSWER: This question is raised by TOSFOS and TOSFOS HA'ROSH earlier (9b). It appears that Rashi is following his own opinion elsewhere. Later in Yevamos (94b), the Gemara cites an argument between Rebbi Yishmael and Rebbi Akiva regarding the Isur of marrying one's mother-in-law (Chamoso). According to Rava's understanding of the argument, Rebbi Akiva rules that if one marries his mother-in-law after the death of one's wife, the Isur is no longer punishable with Sereifah, while Rebbi Yishmael holds that the Isur is still punishable with Sereifah. RASHI in Sanhedrin (76b) writes that according to Rebbi Akiva, there is *no* Isur Kares or Lo Ta'aseh at all for marrying one's mother-in-law after the death of one's wife. One's mother-in- law is only "Asur b'Arur" -- the Torah places a curse on one who marries his mother-in-law, but it is not included in a distinct negative prohibition.

The Rishonim discuss whether this leniency also applies to the Isur of "Bas Ishto" after the death of one's wife. Is it comparable to the Isur of "Chamoso," (since both Isurim stem from the same verse, which prohibits taking a mother and her daughter), or is this leniency specifically given in the case of "Chamoso" and in no other Isur? (see MAGID MISHNAH, Hilchos Isurei Bi'ah 2:7)

It could be that Rashi holds that after the death of one's wife, he is no longer prohibited to any of her daughters (who are not his own daughters). "Bas Ishto" becomes permitted after the death of his wife. Accordingly, we easily find a case where two daughters were born to two brothers from the same woman to whom *both* brothers had been married, and yet the daughters are not prohibited to both brothers because of "Bas Ishto." Such a case is when Levi married the woman, who bore him a daughter, and then (after getting divorced from Levi) she married the second brother, Yehudah, and bore him a daughter. Then, the woman died. Only Levi's actual daughter is Asur to him (because of "Bito"), while Yehudah's daughter is not Asur to Levi as "Bas Ishto," since her mother (his wife) has died.

Nevertheless, Rashi still writes that the second brother raped, and was not married to, the woman, in order to make the case simpler by not having to involve the death of the woman. However, had the second brother married the woman, it would be possible for each brother to still be Mutar to the daughter of the other brother, in a case where the mother of the girls died (after being married to the second brother).

This also answers another question. How could Rav Yehudah and Abaye refer to the cases of Rebbi Chiya and say that his Halachah does not apply to all of the cases in the Mishnah, because "it is only referring to cases of Nisu'in." Rashi earlier (9b) says that this means that the *Mishnah* is discussing only cases of Nisu'in. This is difficult, because Rashi himself (2a) explained that the Mishnah must be referring to cases of Onsin (rape), since it lists "Bito" and "Bas Ishto" as separate Arayos! If "Bito" meant one's daughter through marriage, then that daughter would already be Asur to him because of "Bas Ishto," which is mentioned separately in the Mishnah.

The answer to this question is that according to Rav Yehudah and Abaye, the Mishnah indeed could be referring to cases of Nisu'in as well, where "Bito" was born from one's wife and not only from a woman one raped. Nevertheless "Bito" is not included in the Ervah of "Bas Ishto," because in a case where one's wife died, there is no Isur of "Bas Ishto," yet the Isur of "Bito" remains. (Rashi on the Mishnah (2a), though, is explaining the Mishnah according to Rebbi Chiya; see Insights to 2a and 9b.)

QUESTION: Abaye says that Rebbi Chiya's Halachah does not apply to the Ervah of "Eshes Achiv she'Lo Hayah ba'Olamo," because "we are not discussing cases of Machlokes," and the case of "Eshes Achiv she'Lo Hayah ba'Olamo" is subject to a Machlokes. Rebbi Chiya's Halachah will apply to such a case only according to Rebbi Shimon, and not according to the Rabanan.

RASHI explains that when Abaye says that "we are not discussing cases of Machlokes," he is referring to *Rebbi Chiya* and is saying that Rebbi Chiya is not referring to cases of Machlokes.

Why does Rashi say that Abaye is referring to Rebbi Chiya? Earlier, when the Gemara says that "we are only discussing cases of Nisu'in," Rashi says that the Gemara is referring to the *Mishnah*, and not to Rebbi Chiya! Why does Rashi say here that when the Gemara says "we are not discussing cases of Machlokes," it is referring to Rebbi Chiya?

Second, why does the Gemara earlier (9b), when the Gemara attempts to support the opinion that says that the Mishnah should have included the case of "Imo Anusas Aviv" (which is subject to a Machlokes), cite Rebbi Chiya's Halachah as a proof that the *Mishnah* is discussing cases of Machlokes? According to Rashi, Rebbi Chiya might be discussing cases of Machlokes while the Mishnah does not!

ANSWER: In the Gemara here, Abaye says that even though the Mishnah is discussing cases of Nisu'in, Rebbi Chiya applies his Halachah even to the case of "Bito" in the Mishnah. Even though his Halachah would not work with a case of "Bito" born through Nisu'in (which is what the Mishnah is discussing), but only with a "Bito" from Onsin (which the Mishnah is not discussing), nevertheless Rebbi Chiya mentions that his Halachah applies to all of the cases in the Mishnah because there *is* a type of "Bito" to which his Halachah does apply ("Bito" through Onsin).

If Rebbi Chiya is discussing any possible case of each Ervah mentioned in the Mishnah, then even if the Mishnah does discuss cases of Machlokes, Rebbi Chiya still could have included "Eshes Achiv she'Lo Hayah ba'Olamo," even though it is not the same case as that mentioned in the Mishnah (i.e. it is Rebbi Shimon's case, and not the Rabanan's)! Hence, it does not make a difference whether the Mishnah is discussing cases of Machlokes or not!

It must be that Abaye is saying that Rebbi Chiya is teaching us only the Halachic cases, even those cases not mentioned in the Mishnah (such as "Bito" from Onsin), but he is *not* discussing cases that only work according to one opinion which the Halachah might not necessarily follow (such as Rebbi Shimon's opinion of "Eshes Achiv she'Lo Hayah ba'Olamo").

The Gemara earlier (9b) does not present a challenge to this interpretation either. On the contrary, the Gemara makes more sense if we understand the Gemara there like Rashi explains here, that "we are not discussing cases of Machlokes" refers to Rebbi Chiya, and *not* to the Mishnah (which *is* discussing cases of Machlokes). This is because the Gemara there quotes our Sugya and says that we see from our Sugya that the Mishnah must be discussing cases of Machlokes. The Gemara concludes there that Rebbi (who said that the Mishnah is not discussing cases of Machlokes) must be arguing with Rebbi Chiya. How, though, does the Gemara there see from this discussion that the Mishnah is talking about cases of Machlokes? It is only Rav Safra who says that! Rav Yehudah and Abaye, though, seem to conclude otherwise -- that the Mishnah is *not* referring to cases of Machlokes!

According to Rashi the answer is clear. Rav Safra and Abaye argue only whether *Rebbi Chiya* is discussing cases of Machlokes. They do not argue whether the Mishnah is discussing cases of Machlokes. We see from Abaye that Rebbi Chiya *is* discussing "Eshes Achiv she'Lo Hayah ba'Olamo," even though his Halachah applies to that case only according to Rebbi Shimon, *and* even though Abaye says that Rebbi Chiya only mentions the exact cases that are mentioned in the Mishnah. It must be that the Mishnah *does* include cases of Machlokes, and Rav Safra and Abaye do not argue about that point. Thus the Gemara there brings a proof against Rebbi that the Mishnah is discussing cases of Machlokes!

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