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Yevamos, 52

YEVAMOS 46-60 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: Rami bar Chama questions whether a man may write a Get for his Yevamah in order give it to her later, after doing Yibum and marrying her. The Gemara says that perhaps such a Get is valid, because since the Yevamah is bound to him, she is like an Arusah, and we know that a Get may be written for an Arusah which will only be given to her (and which will only take effect) after her husband marries her.

How can the Gemara even suggest such a possibility? There is a huge difference between a Yevamah and an Arusah. Mid'Oraisa, an Arusah has a status of being married, and a Get can be given to her in that state and it will make her a Gerushah d'Oraisa. In contrast, a Yevamah is not considered married at all mid'Oraisa, and if her Yavam gives her a Get in that state, the Get is ineffective d'Oraisa. It was the Chachamim who instituted that if a Yavam gives his Yevamah a Get, then she becomes Asur to all of the brothers!

The following statement of the Gemara is also puzzling. The Gemara says that the reason the Get might not work when it was written before Yibum is because the Yavam did not yet do Ma'amar with the Yevamah. This implies that if Ma'amar had been done, there would be no question that the Get can take effect after Yibum.

Why is that so? Even if the Yavam did Ma'amar, the Get is still only a rabbinical enactment and should not be able to take effect after he marries her, when a Get d'Oraisa will be needed in order to divorce her! If the Gemara is discussing a Get that only helps mid'Rabanan (for instance, to prohibit her to a Kohen), then even if the Yavam did *not* do Ma'amar, he may still give the Yevamah a Get d'Rabanan and it takes effect (to prohibit her to the brothers). What difference should Ma'amar make?


(a) TOSFOS explains that Rami bar Chama's question indeed is whether the Get that is written during Zikah helps after marriage as a Get *mid'Rabanan*. That is, the Get certainly cannot be effective in allowing her to remarry. Rather, the question of the Gemara is whether the Get can be effective in invalidating the woman from being able to marry a Kohen. Since giving her a Get d'Rabanan before the marriage will invalidate her from Kehunah, perhaps the Yavam can write a Get which will prohibit her even if given to the woman only *after* marriage.

However, if this is the Gemara's question, then it should be obvious that he may give such a Get. Since he can invalidate her now by giving the Get now, it is in his hands to invalidate her and thus the Get should also be able to take effect later! What difference does it make if the Get is written before Ma'amar or after Ma'amar?

The TOSFOS YESHANIM and RASHBA explain that the Chachamim only instituted the type of Get that is given before Ma'amar for the purpose of making the Yevamah Asurah to the brothers. The Get, then, is serving a completely different purpose than a Get given to a woman who is married, or even a Get given to a Yevamah after Ma'amar, both of which have the purpose of breaking a bond. This Get, though, only has the purpose of prohibiting her to the brothers. The Gemara is saying that it is not in the Yavam's hands to divorce the Yevamah with a normal Get during the period of Zikah, because the type of Get which the Chachamim instituted for that period is not one which breaks a bond. That is why it might not be effective after she and the Yavam are married.

(b) The RIVAM cited by TOSFOS answers that the question of the Gemara is whether or not a Get written before Ma'amar can be used after the *Ma'amar* (and not after the marriage) is done in order to revoke the Ma'amar. The Gemara's question is based on the presumption that there is a difference in essence between a Get given before Ma'amar and a Get given after Ma'amar, as explained in the previous answer. Again, the Gemara is discussing whether the Get works mid'Rabanan.

(c) The RASHBA says that the words of the Gemara do not support either of these explanations. Rather, the Gemara is asking that perhaps the Get might work on a d'Oraisa level after she is married and it will be able to effect a divorce. The RAMBAM (Hilchos Gerushin 3:6) also implies this (and perhaps RASHI in our Sugya means that as well).

The RASHBA explains that the Gemara is suggesting that since *Chalitzah* can be performed during Yibum to break a Zikah, then even though a Get cannot be used to break a Zikah, the Yavam is considered to have the power of "divorce" even before he does Yibum. It is considered in his hands to effect a breaking of the bond, since he could break the bond with Chalitzah. That gives him the authority to have a Get written now that will take effect only after the Yibum is performed and the marriage bond formed.

When the Gemara mentions Ma'amar, it is referring to a second question. If the answer to the first question is that it is *not* considered in his hands to break the bond of Zikah now and thus he may not write a Get to take effect later, then could he at least write a Get before Ma'amar to take effect after Ma'amar which will invalidate her to Kehunah (as Tosfos in (a) explains the main question of the Gemara), or can such a Get only be written after Ma'amar? That is the second question of the Gemara.

QUESTION: The Gemara asks whether a Get can be given for Ma'amar and not for Zikah. RASHI (DH O' Dilma) explains that the Gemara is saying that if there could be such a Get, such a Get would simply break off the Ma'amar and return the situation to the way it was before the Ma'amar was given. Consequently, the Yevamah will be permitted to all of the brothers, and she will be prohibited to the brother who wrote the Get to break off his Ma'amar.

From where does Rashi know that the Yevamah will be Asur to the brother who wrote the Get? If he gives a Get to break off the Ma'amar, then -- as Rashi says -- the situation returns to the way it was before the Ma'amar, and thus *all* of the brothers, including the one who gave the Get, should be permitted to the Yevamah!

Rashi later (DH Nasan) mentions the logic that if we permit the Yevamah to the brother who gave her a Get for Ma'amar, people will mistakenly permit a woman who received a Get for *Zikah* to the brothers (when, in such a case, she is really prohibited to them), and therefore the Chachamim decreed that a woman who receives a Get for Ma'amar should also be Asur to the brothers, because of a Gezeirah of a Get given for Zikah. Whether there is such a Gezeirah or not is the subject of a Machlokes earlier (32a) between two versions of a statement of Rava. In either case, though, when Rashi writes that the brother who gave the Get is Asur to the Yevamah, he cannot be referring to that Gezeirah, because if the Chachamim did make such a Gezeirah, then not only the brother who gave the Get should be Asur to the Yevamah, but so should all of the other brothers as well! If the Chachamim did not make such a Gezeirah, then even the brother who did Ma'amar and gave a Get should be permitted to her! (TOSFOS DH O Dilma)

ANSWERS: Although the Rishonim do not address the *source* for Rashi's ruling, they do discuss the *logical basis* for his ruling:

(a) RABEINU AVRAHAM MIN HA'HAR writes that the very fact that the brother gave a Get to remove the Ma'amar shows that he does not want to do Yibum with this woman, and follow up the Ma'amar. That is why Rashi writes that the one who gives the Get will not be able to do Yibum with the woman, because by giving her a Get he shows that he does not want to be Boneh this Bayis, just like a person who gave a Get for the Zikah.

(b) The NIMUKEI YOSEF (32a) explains that we find in the Gemara earlier (12a) that a Ketanah who does Mi'un with one of the Yevamim after the death of her husband remains Asur to the brother to whom she did Mi'un, even though her Mi'un uproots the entire Kidushin retroactively and is permitted to all of the other Yevamim as if she was never married to their brother. Since she did an action to break the bond with that particular Yavam, the Chachamim decreed that she is prohibited to him, because she looks as though she was his "Eshes Achiv."

From that case we see that when she does an action (Mi'un) to break the bond between them, there is reason to prohibit them to each other. Similarly, in our case, the Yavam who gave a Get did an action to break the bond between them, and even though his act did not uproot the Zikah, his act showed that he did not want to do Yibum with the Yevamah, and thus there is reason to prohibit the Yevamah to him.

(According to both of these explanations, Rashi here is following the opinion that the Chachamim did not institute a Gezeirah lest people confuse this case with that of a Get given for the Zikah (like the second version of Rava's statement on 32a), even though Rashi in his next comment cites the other opinion that says that all of the brothers become Asur because "they might mix up this case witjust the Ma'amar].")

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