THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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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.
1) DOING YIBUM WITH A BROTHER WHO WAS ASUR TO THE YEVAMAH
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
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"
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
(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).
3) THE PRINCIPLE OF "KOL HA'OLEH L'YIBUM, OLEH L'CHALITZAH"
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
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