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Yevamos, 41

YEVAMOS 41 (3 Shevat) - has been dedicated by Zvi and Tamarah Sand of Har Nof, Yerushalayim, in memory of Tamarah's grandfather, Chanan (ben Chaim) Bromberg, on his Yahrzeit.


QUESTION: The Gemara says that in the case of the Mishnah, where a brother of the deceased man had married the sister of the Yevamah after she fell to Yibum, and then his wife died, Rav and Rav Chanina maintain that the brother is now permitted to do Yibum with and marry the Yevamah.

Why is there an obligation of Yibum in this case? When the woman fell to Yibum and then became exempt from Yibum because she was the brother's "Achos Ishto" (the brother married her sister), she became permitted to marry anyone ("Muteres la'Shuk"), and thus how can she again become obligated to do Yibum? The principle of "Deracheha Darchei Noam" teaches that the ways of the Torah are ways of pleasantness, and thus a woman who has been exempt from Yibum (and has been permitted to marry someone else) cannot suddenly be obligated to do Yibum when the reason for her exemption is removed (87b, regarding a man who died and left a child behind, and then the child died; see Insights to 30a).


(a) The RITVA writes that the only time she will be permitted to the brother who was married to her sister is when there was another Yavam alive at the time. Since there was another brother to whom she was permitted, she was never completely released from the obligation of Yibum. Consequently, because she was permitted to the brother at the time she fell to Yibum, and because she was never completely released from the obligation due to the presence of another brother, she can become obligated to do Yibum with the brother to whom she was prohibited when the reason for the Isur is removed (i.e., the death of his wife, the Yevamah's sister).

This might also be the opinion of TOSFOS (DH Mesah).

(b) The RASHBA, however, infers from the Gemara that Rav's ruling was stated even where there is no other Yavam. His ruling seems to be referring to all of the cases in the Mishnah -- even the last case where the Yavam died, where there clearly is no other Yavam except for the brother who married the Yevamah's sister. The Rashba therefore asserts that Rav means something else entirely.

Rav is not saying that after the death of the brother's wife (sister of the Yevamah) that the Yevamah then falls to Yibum again. She is exempt because of the principle of "Deracheha Darchei Noam." Rather, Rav means to say that once a man becomes permitted to the wife of his brother ("Eshes Achiv") through the laws of Yibum, he never loses that Heter. This is in accordance with the statement of Rebbi Yochanan (10b) that even after one of the brothers does Yibum, the other brothers retain the Heter to that woman and are not prohibited to her due to the Isur of "Eshes Ach." They are prohibited to marry the Yevamah only due to the prohibition of "Lo Yivneh" (Devarim 25:9).

In our case, also, even though there was a period during which the Yavam was Asur to the Yevamah (i.e. while his wife -- the Yevamah's sister -- was alive), the Isur of "Eshes Ach" does not return. When his wife dies, he has the option of marrying the Yevamah not as a Yevamah, but as a *normal wife*. When Rav says "[Mesah Ishto,] Mutar b'Yevimto," he does not mean that the brother may now do Yibum with the woman, but that he may now marry her as a normal wife.

(According to the Rashba, the Gemara is apparently discussing a case where the Yavam did not yet perform the Chalitzah that our Mishnah requires, before his wife died. If he already performed Chalitzah, the Yevamah should become Asur to him due to the prohibition of "Lo Yivneh," which prohibits a person from remarrying his Chalutzah, since the Rabanan required him to perform Chalitzah with the Yevamah.)

It is not clear whether the Rashba gives this explanation only according to Rebbi Yochanan (10b) who says that the Isur Eshes Ach does not return to the brothers after one of them does Yibum or Chalitzah (and he is saying that Rav holds like Rebbi Yochanan). On the one hand, his explanation may not conform to the opinion of Reish Lakish, who says that the Isur Eshes Ach does return to the brothers when one does Yibum or Chalitzah. Perhaps the Rashba will admit that according to Reish Lakish, the Isur of "Eshes Ach" will return in our case as well when the brother's wife (the Yevamah's sister) died. On the other hand, perhaps the Rashba is giving this explanation even according to Reish Lakish. Reish Lakish only says that the Isur returns when one brother does Yibum or Chalitzah, in which case we say that it has become clarified, retroactively, that the woman was always bound to that brother (who did Yibum or Chalitzah with her) specifically and not to the others. But when no brother ever fulfilled the Mitzvah (which is the case under discussion in our Gemara), perhaps the Heter remains.

Proof for this latter approach may be brought from the fact that the Gemara needs a verse to teach us that the Yavam may divorce the Yevamah and then remarry her. According to the Rashba, a verse is not necessary to teach that, because Rav and Rebbi Yochanan learn, logically, that the Isur Eshes Ach can never return once it has been removed. Of course the Yavam may remarry the Yevamah! It must be that we might have thought that after Yibum was done, since the Mitzvah was already fulfilled, the Heter is revoked and the Yevamah becomes prohibited to the brother again. Therefore, the verse must teach that the Heter still remains (i.e. for the brother who did Yibum according to Reish Lakish, and for all of the brothers according to Rebbi Yochanan -- see also Insights to 10b).


SUMMARY: Our Gemara cites the principle that "Kol ha'Oleh l'Yibum, Oleh l'Chalitzah..." -- anyone who can perform Yibum, can perform Chalitzah, and anyone who cannot perform Yibum, cannot perform Chalitzah. The Gemara applies this principle to the case of a Yevamah within three months after the death of her husband; since she cannot do Yibum (because she must wait three months to verify that she is not pregnant), she also cannot do Chalitzah.

RASHI explains that this does not mean that if she does Chalitzah, the Chalitzah will not take effect. Rather, it means that since it is possible to wait until she becomes fit for Yibum, l'Chatchilah she must wait and perform Chalitzah only after she becomes fit for Yibum. This is a different application of the principle of "Kol sh'Eino Oleh l'Yibum" than we have seen until now. Indeed, we find that the Gemara discusses this principle with regard to a number of different types of cases. We can group these different types of cases into six different categories:

(a) ISUR YIBUM M'SAFEK - Our Gemara discusses whether the rule applies in a case where Yibum cannot be done because of a Safek, where we lack details about the specific case (such as within the first three months after the Yevamah's husband died, when we have a Safek whether or not she is pregnant and exempt from Yibum). TOSFOS and RASHI explain that it is obvious that if it cannot be clarified even at a later date whether or not she needs Yibum to do Chalitzah, she may certainly perform Chalitzah out of doubt that perhaps she is obligated, even though she cannot do Yibum (since she might not be obligated).

The Gemara concludes that even when it *is* possible to clarify the Safek at a later date, it is still not necessary to wait until then to do Chalitzah. The Yevamah may do Chalitzah l'Chatchilah even during the time that she is still in doubt and therefore not fit for Yibum. (The reason for this is because she really might be fit for Yibum and Chalitzah at this moment, and we just do not know it.)

(b) ISUR YIBUM MID'RABANAN - In a case where the Chachamim prohibited doing Yibum, the Halachah is that if the Isur d'Rabanan will not be removed at a later date, then certainly she may perform Chalitzah immediately, because mid'Oraisa the woman has an obligation to do Yibum and may not marry until she releases herself from that obligation. On the other hand, if the Isur d'Rabanan *will* be removed at a later date (such as after the Rabbinic enactment to wait three months after her husband died before remarrying), then l'Chatchilah she should not do Chalitzah until after the Chachamim's Isur of Yibum is removed and she becomes fit to do Yibum.

(c) ISUR NIDAH - The third case is that of a woman who falls to Yibum while she is a Nidah, where it is Asur mid'Oraisa to do Yibum with her because she is a Nidah. The TOSFOS HA'ROSH (2a) suggests that even if Yibum cannot be effected with a Nidah, nevertheless Chalitzah may be done with her while she is a Nidah. The reason for this is because the Isur of Nidah is expected to depart after a certain time passes. She is bound with Zikah to do Yibum since she is expected to be fit to do Yibum later. As a result, she may do Chalitzah even now, during the time that she is a Nidah.

(Tosfos and the Rosh (2a) are in doubt whether the Yibum is valid or not when a man transgresses the Isur d'Oraisa of Nidah and does Yibum with a Nidah. If the Yibum is valid b'Di'eved, then a Yevamah who is a Nidah is certainly fit to be "Oleh l'Yibum," and she does not fall into the category of "Kol sh'Eino Oleh l'Yibum...," even though it is Asur mid'Oraisa to do Yibum with her l'Chatchilah.)

(d) CHAYAVEI LAVIM - The Gemara earlier (20a) says that in a case where it is Asur to do Yibum with a woman because she is Asur to the Yavam with an Isur Lav, she may still do Chalitzah even though the Yibum would not be valid even b'Di'eved. This is because of a special verse -- "Yevimto" (Devarim 25:7) -- that includes Chayavei Lavim in the obligation of Chalitzah, while exempting them from Yibum. The Rishonim there point out that the Gemara concludes that the Aseh of Yibum is Docheh the Lo Ta'aseh of an Isur Lav, and thus, mid'Oraisa, Chayavei Lavim *are* fit to do Yibum. However, the verse quoted there is used to teach a different exception to the principle of "Kol sh'Eino Oleh l'Yibum," and that is the case of a woman who cannot do Yibum because is Asur to the Yavam with an Isur Aseh (such as a Be'ulah to a Kohen Gadol). The woman will still have an obligation to do Chalitzah because of this verse, even though she is not fit for Yibum.

RASHI (3a, DH Havah Amina) seems to disregard this exception to the rule of "Kol she'Eino Oleh l'Yibum..." Rashi writes that the Halachah of "Choletzes v'Lo Misyabemes" (she must do Chalitzah and may not do Yibum) is found only when the woman is Asur to the Yavam due to a Safek Isur. He does not mention any other case of "Choletzes v'Lo Misyabemes." It is understandable why Rashi omits the second category mentioned above, a case where it is Asur d'Rabanan to do Yibum, because Rashi is referring only to situations of "Choletzes v'Lo Misyabemes" *mid'Oraisa*, and the only such case is a Safek Isur. REBBI AKIVA EIGER (in GILYON HA'SHAS) questions why Rashi ignores the cases of women who are Asur to their Yavam because of a Chiyuv Aseh. In such a case, the Mitzvah of Yibum does not override the Isur, and yet she is still required to do Chalitzah because of the verse of "Yevimto."

The answer to this might be that Rashi is following his own opinion elsewhere (Yevamos 9a, Sanhedrin 53a etc.), where he writes that a woman who is Asur to her Yavam because of a Chiyuv Lav is prohibited by the *Torah* from doing Yibum because of the Isur Lav (i.e. we do not apply the principle of "Aseh Docheh Lo Ta'aseh" when it comes to Yibum). As we explained earlier (see Insights to Yevamos 20:4), it is clear that according to Rashi, if the Yavam transgressed the Chiyuv Lav or Chiyuv Aseh and had relations with the Yevamah, b'Di'eved he is Koneh her. Even though he did an Isur, the Yibum takes effect (just like Tosfos says with regard to doing Yibum with a Nidah, as we wrote above). Thus, she is considered to be "Oleh l'Yibum," and that is why she does Chalitzah. This explains why Rashi did not list the cases of Chiyuv Lav and Chiyuv Aseh as cases of "Choletzes v'Lo Misyabemes" -- Rashi is discussing cases where Yibum may not be done, and b'Di'eved if Yibum was done, it does *not* take effect.

(e) ME'UBERES - Rava (36a) states that if one cannot do Yibum with a Yevamah who is pregnant, he also cannot do Chalitzah with her, even if the baby ends up to be a living child, because she is not "Oleh l'Yibum." RAV ELCHANAN WASSERMAN (Kovetz He'oros 38:2) points out that this is not the classic case of "Kol she'Eino Oleh l'Yibum, Eino Oleh l'Chalitzah," because after the baby is born and is found to be a stillborn certainly Yibum and Chalitzah can be done. Since there is an obligation of Yibum at that time, there obviously is a Zikah of Yibum that exists, retroactively, from the time that the Yevamah fell to Yibum when her husband died. This is also evident from the fact that the Yavam is not Chayav Korban is he had relations with the Yevamah before her baby was found to be a stillborn (see Insights to 35b). Nevertheless, since he cannot actively have relations with her now, we say that she is "Eino Oleh l'Yibum." That is why Rashi explains the principle of "Kol she'Eino Oleh" slightly different in that Sugya.

What is the difference between this case and the case of Nidah, in which the Nidah may do Chalitzah now since Yibum can be done later? The TOSFOS HA'ROSH asks this question and answers that a Nidah is fully expected to become permitted later, while in this case, we have no way of knowing whether the woman will be permitted to do Yibum later or not (we do not know whether the baby will live or die), and therefore it is a case of "Eino Oleh l'Yibum."

(f) CHAYAVEI KERISUS - When a woman cannot do Yibum because she is Asur b'Kares to the Yavam (such as "Achos Ishto," she is the sister of his wife), then the Torah exempts her from Chalitzah as well: since she has no "Zikah for Yibum" she has not "Zikah for Chaltizah" (20a). Similarly, after doing Yibum with one of the Yevamos (44a), one cannot do Yibum with her Tzarah because of the rule that "Bayis Echad Hu Boneh" -- one may build only one "house" for his brother by doing Yibum with one of his wives, and not two. Consequently, one cannot do Chalitzah with the second wife because there is no longer any Zikah of Yibum to that wife.

(This is the classic case of "Kol sh'Eino Oleh l'Yibum, Eino Oleh l'Chalitzah.")

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