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Yevamos, 94

YEVAMOS 86-95 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: The Gemara attempts to prove that a single witness is believed to exempt a woman from Yibum. The Gemara quotes the Mishnah that says that if witnesses "told her that her husband died before her son died (and thus she is exempt from Yibum), and then she remarried, and afterwards two other witnesses told her that the opposite occurred (her son died before her husband died, and thus she is obligated to do Yibum), she must leave both husbands."

The Gemara asks how many witnesses does the Mishnah mean when it says that they testified that she could remarry; if it was two witnesses, then even when another two witnesses come they should not be able to override the first pair (rather, it should be a situation of "Trei u'Trei")! It must be that the first testimony was given by a single witness, and when two witnesses come they are able to override his testimony. The Gemara rejects this proof by saying that the first testimony was indeed given by two witnesses, and the reason why the second pair is able to override the first pair's testimony is because the second pair of witnesses are Edim Zomemim who are believed to refute the testimony of -- or, more specifically, disqualify -- the first pair of witnesses, and thus the situation is not one of "Trei u'Trei."

How can the Gemara say that when the Mishnah says that a second pair of witnesses came and testified that "the opposite occurred" (the son died before the father died) it is referring to Edim Zomemim? Edim Zomemim only testify that the first set of witnesses could not be telling the truth because they were not where they claimed to have been when they saw the events about which they are testifying, and thus they could not have seen those events. The second pair of witnesses are not testifying that "the opposite occurred," but merely that what the first pair of witnesses cannot be true!

It cannot be suggested that the Gemara means that the second pair of witnesses said two things -- first, that the first pair was with them at the time the events occurred, and second, that the opposite of what they say occurred -- because such testimony would not suffice to make the other pair of witnesses Edim Zomemim (see Makos 5a, RAMBAM Hilchos Edus 18:2 and Lechem Mishnah)! (ARUCH LA'NER)

In addition, it cannot be suggested that there are *two* additional pairs of witnesses testifying against the first pair -- one pair serving to make the first pair Zomemim, and the other pair testifying that the opposite of what the first pair said occurred -- because the words of Rashi and the Rishonim imply that only one other set of witnesses came!

ANSWER: Perhaps when the Mishnah says that the second pair of witnesses say that "the opposite occurred," it does not mean that those witnesses testify that the opposite actually happened, but rather they say that the opposite *might* have happened.

Why, though, does the Mishnah emphasize that the "opposite" might be true? If the second pair of witnesses made the first pair into Zomemim, there is an even greater concern -- that the husband is still alive!

The answer is that the Mishnah is teaching that the second pair of witnesses made the first into Zomemim *only with regard* to the first pair's testimony concerning the timing of the death of the son. The husband, though, is certainly dead, just like the first pair testified, and what remains in question is whether the son died before the father or after him. The Mishnah uses such a case in order to demonstrate that if the son indeed died first, the children that the woman subsequently bears from another husband are Mamzerim, in accordance with the view of Rebbi Akiva who says that the children of a Yevamah la'Shuk are Mamzerim. (M. Kornfeld)


OPINIONS: The Gemara cites a Machlokes between Rebbi Yishmael and Rebbi Akiva (according to the way Rava learns the Machlokes) regarding whether a person is punished for living with his wife's mother (Chamoso) after his wife has died. The Gemara concludes that even according to Rebbi Akiva -- who says that one is punished with Sereifah only when he commits the Isur while his wife is still alive -- an *Isur* nevertheless remains even after the wife's death.

What is the Isur that remains after the wife's death? It cannot be the verse in Parshas Kedoshim (Vayikra 20:14) which ascribes the death penalty for marrying a woman and her mother, because that verse applies only when the wife is alive, according to Rebbi Akiva! What, then, is the Isur?

(a) TOSFOS (DH mei'Isura, and 98b, DH Kalash), the RAMBAM (Hilchos Isurei Bi'ah 2:5), and the RA'AVAD (quoted by the ME'IRI in Sanhedrin 76b) write that the Isur that remains is an Isur of Kares and a Lo Ta'aseh, as derived from the verse in Parshas Acharei Mos (Vayikra 18:17) which ascribes Kares and a Lav to the act and does not limit the Isur of Kares and Lav to when they are both alive.

(b) However, RASHI in Sanhedrin (76b, DH Rebbi Akiva) explains 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. Rather, after the death of one's wife, marrying one's mother-in-law is only "Asur b'Arur" -- the Torah places a curse on one who marries his mother-in-law, as the verse states in Parshas Ki Savo (Devarim 27:23). There is no distinct negative prohibition, though.

Strong support for the view of Rashi can be derived from the wording of the Gemara in Sanhedrin (as the MAHARSHAL here points out), which says that marrying one's mother-in-law after the death of one's wife involves an "Isura b'Alma" -- only a "minor Isur." Further support can be adduced from the Gemara later in Yevamos (98b), as TOSFOS there (DH Kalash) writes. Rashi's opinion is also that of the RASHBA and RAMBAN (98b) who say that there is only an Isur Arur for one to marry his mother-in-law after the death of his wife.

1. The ARUCH LA'NER here asks that there are actually *six* relatives who are prohibited by the Isur of "Ishah u'Vitah:" one's mother-in-law and *her* mother or mother-in-law, one's wife's daughter and her son's or daughter's daughter. The verse of "Arur," however, refers to only one of these relatives -- to one's mother-in-law. Consequently, there should be no Isur at all, not even an Arur, for having relations with one's wife's daughter or granddaughter, or with one's wife's mother's mother or mother-in-law, after the death of one's wife!

And if it is true that one's wife's mother's mother is permitted to him l'Chatchilah after the death of his wife, then the question of the Gemara returns: why did Rebbi Akiva not say that there is another Ervah who needs a Get? If one was Mekadesh a woman and then he heard that she had died, and he went and married her mother's mother who is permitted to him l'Chatchilah since his wife is presumed to be dead, then if his wife returns alive, he should have to give a Get to her mother's mother! The Gemara has not answered its question that there is an additional Ervah which Rebbi Akiva should have included in his list!

The RAMBAN and RASHBA (98b) answer that the verse teaching the Isur of Arur includes not only one's mother-in-law, but also her mother, and her mother-in-law. (See Aruch la'Ner who suggests a different answer.)

2. However, this answer only explains why Rebbi Akiva did not list one's wife's grandmother among his list of Arayos who need a Get if one marries them by accident under the presumption that one's wife is dead. However, why did he not mention the Ervah of one's wife's daughter or granddaughter? If one thinks that his wife is dead and he marries his wife's daughter or granddaughter, then he should have to give her a Get since they are permitted after his wife's death, and the verse of Arur does not apply to them!

The RAMBAN and RASHBA (ibid.) explain that Rebbi Akiva's view that the Isur of "Ishah u'Vitah" does not apply after the death of one's wife is said *only* with regard to one's wife's mother or grandmother, which is what the verse "Oso v'Es'hen" (Vayikra 20:14) is discussing. One's wife's daughter or granddaughter, though, are not permitted after the death of one's wife.

However, the RAMBAM (Hilchos Isurei Bi'ah 2:7-8) understands that Rebbi Akiva is referring to any of the Arayos in the two generations above *or below* one's wife, and not just to those in the two generations above one's wife (i.e. one's wife's mother or grandmother). According to the Rambam, in all of these cases, Rebbi Akiva says that there is no Isur of Sereifah!

Rashi also seems to agree with the Rambam in this point, as is evident from Rashi's words earlier (2a and 9b; see Insights to 9b), where Rashi implies that one's wife's daughter or granddaughter becomes permitted to him after his wife's death. If so, she should be permitted to him l'Chatchilah, since the Torah does not write an Arur that applies to one's wife's daughter or granddaughter!

Apparently, the answer is that Rashi indeed learned that the Arur of living with one's wife's close relatives applies to all of the Arayos that are included in "Es Ishah v'Es IMah." Just like Rashi learns that the words "Es Ishah v'Es Imah" (from which Rebbi Akiva learns that one's mother-in-law is permitted after the death of one's wife) refer to either the wife and her mother or grandmother, or the wife and her daughter or granddaughter, so too, when the Torah writes "Chosanto" (his mother-in-law) in the verse of the Arur it includes all of those included in "Es Ishah v'Es Imah."

(Although it is true that Rashi in Sanhedrin says that the "Isur" mentioned by Rebbi Akiva here means that there is only an "Arur," TOSFOS YESHANIM here and the RITVA (98b) quote Rashi as saying that after the death of one's wife, his mother-in-law *is* prohibited with Kares and a Lav, but not with Sereifah. Apparently, they inferred this from the words of Rashi later (98b, DH Kalash), where Rashi writes that after the death of one's wife, the man is "not punished with Seriefah" for living with his mother-in-law. This implies that an Isur Kares and a Lav do remain. However, as we have seen, the words of Rashi in our texts both in Sanhedrin and in Yevamos seem to say otherwise and to prohibit one's mother-in-law and one's wife's daughter after the death of one's wife with only an Isur of Arur, but not with an Isur of Kares and Lav.)

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