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Yevamos, 55

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


QUESTION: The Gemara cites the phrase, "Ervas Achicha Hi" (Vayikra 18:16), which teaches that one is Chayav Kares for having relations with "Eshes Achiv" (one's brother's sister) even when he and his brother share only the same mother ("Eshes Achiv Min ha'Em").

However, that verse appears in the Parshah (Acharei Mos) that discusses the Isur Lo Ta'aseh of having relations with the various Arayos; it does not openly prescribe the punishment of Kares for Eshes Achiv in that Parshah. It might therefore be possible to argue that the verse "Ervas Achicha Hi" only includes "Eshes Achiv Min ha'Em" in the Lo Ta'aseh, but not in the punishment of Kares. TOSFOS (2a, DH Eshes Achiv), though, points out that the Mishnah at the beginning of Yevamos lists "Eshes Achiv Min ha'Em" as one of the Arayos that exempt a person from Yibum, and the Gemara (3b) says that all of the Arayos that exempt a person from Yibum are Arayos which are punishable with Kares. We see, then, that the Mishnah takes it for granted that "Eshes Achiv Min ha'Em" is Chayav Kares.

Tosfos, however, points out that there are other sources that imply that there is *no* Kares for "Eshes Achiv Min ha'Em." The TORAS KOHANIM (Kedoshim 11) and YERUSHALMI (Shabbos 7:2) explain that the verse discussing the Kares of Eshes Achiv (in Parshas Kedoshim) adds the words "Nidah Hi," in order to teach that the Isur of "Eshes Achiv" is punishable by Kares when it is similar to a Nidah; just like the Isur of Nidah has a Heter (she can become Tahor), so, too, the type of "Eshes Achiv" that is Chayav Kares is that which has a Heter, i.e. "Eshes Achiv Min ha'Av" (the Heter being a situation of Yibum). This implies that only "Eshes Achiv Min ha'Av" is included in the punishment of Kares and not "Eshes Achiv Min ha'Em."

Although the Toras Kohanim and Yerushalmi might disagree with our Gemara's interpretation of "Nidah Hi," they certainly could not be arguing with the Mishnah at the beginning of Yevamos, which states that "Eshes Achiv Min ha'Em" is exempt from Yibum (because it carries a punishment of Kares). How did the Toras Kohanim and the Yerushalmi learn the Mishnah?


(a) TOSFOS (2a) and the RAMBAN (54b) suggest that perhaps the Toras Kohanim means to say the same thing as our Gemara says (on 54b). The Gemara there derives that "Eshes Achiv Min ha'Av" -- in a case where the brother was childless, but *divorced* his wife -- is punishable with Kares, despite the fact that it is *permitted* to marry such a woman in a situation of Yibum, i.e. if her husband dies childless. This is learned from the words "Nidah Hi," which imply that the verse applies to the type of "Eshes Achiv" that can have a Heter (i.e., she is like a Nidah, who can become permitted). The Torah is telling us that even "Eshes Achiv Min ha'Av" will sometimes incur a punishment of Kares.

Perhaps that is what the Toras Kohanim means as well: it is not saying that the verse is referring *only* to "Eshes Achiv Min ha'Av," but that the verse is referring *even* to "Eshes Achiv Min ha'Av." "Nidah Hi" teaches that even though that Eshes Ach has a Heter (when the brother dies and his wife falls to Yibum), the Chiyuv Kares remains when the brother divorces his wife.

(b) Tosfos (2a and Kerisus 14b), however, rejects this explanation based on the wording of the Yerushalmi and the Toras Kohanim. Instead, he suggests a different explanation. The Toras Kohanim and Yerushalmi do not mean to exempt "Eshes Achiv Min ha'Em" from Kares. Rather, they learn from the words "Nidah Hi" that "Eshes Achiv Min ha'Em" is not punished with *Ariri*, whereas all of the other Arayos are punished with Ariri. (Even though the verse mentions Ariri only with regard to "Dodaso" (one's aunt) and "Eshes Achiv," by applying the Hekesh of Rebbi Yonah, which compares all of the Arayos to each other, we can learn from "Dodaso" that all of the Arayos carry the punishment of Ariri.)

(Perhaps the logical understanding of this distinction is that since the person might have pure intentions when he has relations with the wife of his brother (from his mother) -- since he intends to "build the family" of his deceased brother by bearing children with his wife, such as is the case with Yibum of a paternal brother's wife -- Midah k'Neged Midah the Torah does not punish him with the death of his children - M. Kornfeld.)

Tosfos points out that this explanation is viable only if Ariri and Kares are two separate punishments. Kares means simply "early death," while Ariri adds the aspect of dying childless. This is not the view of RASHI here (DH Aririm).

If Kares and Ariri are different punishments, though, what is the Gemara's intention here when it asks why the Torah says "Aririm Yiheyu" in the verse of the Isur of "Dodaso?" The Torah has to write "Aririm" to teach the additional punishment of Ariri! The answer to this question is that the Gemara is asking why it says "Aririm" *twice*, once in the verse of "Dodaso" and a second time in the verse of "Eshes Achiv." The Torah could have mentioned it only once, and we would have learned from there that all the other Arayos are also punished with Ariri, through the Hekesh of Rebbi Yonah.

(c) A third possibility, which is not mentioned by the Rishonim, is that the Yerushalmi actually exempts "Eshes Achiv Min ha'Em" from Kares. The Yerushalmi maintains that even though there is no Kares for "Eshes Achiv Min ha'Em," that relationship still exempts a person from Yibum, because it is included in the Hekesh of Rebbi Yonah, which teaches which women are exempt from Yibum (as Tosfos (3b DH Mah Achos) explains. That Hekesh is written in Parshas Acharei Mos, in which Eshes Achiv me'Imo *is* included (through the words "Eshes Achicha Hi"), as our Gemara concludes. (Even though the verse which Rebbi Yonah uses for the Hekesh to compare all of the Arayos (54b) with each other specifically mentions Kares, Eshes Achiv me'Imo is exempt from Kares because, according to the Yerushalmi, another verse ("Nidah Hi") excludes "Eshes Achiv Min ha'Em" from Kares.)

Acharonim adduce proof from another statement in the Yerushalmi that the Yerushalmi indeed maintains that "Eshes Achiv Min ha'Em" is not punished with Kares. The Mishnah in Kesuvos (29a) lists types of Na'aros for which a man will be obligated to pay a penalty if he rapes them. One of the Na'aros mentioned in the Mishnah is "Eshes Achiv... even though she is Asur with an Isur Kares." The YERUSHALMI (cited by TOSFOS there, DH v'Al Eshes Achiv) asks how there can be a penalty for raping "Eshes Achiv?" In order for there to be a penalty, the Na'arah must be a Besulah, and must not be married at the time (because if she is, the rapist is given the death penalty and not a monetary penalty). If the rapist's brother dies and his wife is still a Besulah, the dead brother obviously did not bear children from her. If so, the live brother is not prohibited to her at all -- to the contrary, he has a Chiyuv to do Yibum with her, and thus there should be no Kares nor a penalty! The Yerushalmi answers that the Mishnah is referring to a case where the brother who died had children from another wife, and thus his wife does not fall to Yibum.

Why does the Yerushalmi not give a very simple answer? The Mishnah could simply be referring to an "Eshes Achiv *Min ha'Em*!" Even though her husband died childless, there is no Chiyuv of Yibum with her (since the brothers do not share the same father), and thus the brother is Chayav to pay a penalty for raping her! (TOSFOS CHADASHIM on the Mishnayos; this is indeed how the RIF in Kesuvos answers the Yerushalmi's question. See also RASHASH, there.)

If the Yerushalmi maintains that "Eshes Achiv Min ha'Em" bears no punishment of Kares, then the Yerushalmi's question is easy to understand. The Mishnah cannot be discussing "Eshes Achiv Min ha'Em" because it clearly says that the Eshes Achiv of the Mishnah incurs the punishment of Kares!

(The RIF, and others, also suggest that the Eshes Achiv of the Mishnah might be his brother's *divorced* wife, and not his widow. It is possible, however, that the Yerushalmi understood that this cannot be so, for only later does the Mishnah (Kesuvos 38a) introduce the Halachos of raping a divorcee. (In fact, one Tana there says that in the case of a divorcee, there is no monetary penalty at all). Although all the commentaries (see Rashi there) equate the laws of a divorcee to those of a widow, it is possible that the Yerushalmi learned otherwise. The Yerushalmi might have maintained that all Tana'im agree that there *is* a monetary penalty for a widow, because she returns to her father's house after becoming widowed -- see the Mishnayos in Nedarim 70a, 71a.)


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