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Yevamos, 96

YEVAMOS 96, 97 - These Dafim have been sponsored through the generous donation of Reb Uri Wolfson of Yerushalayim, a true Ohev Torah.


QUESTION: The Mishnah discusses a case of a nine year-old boy who lived with his Yevamah, and then his nine year-old brother also lived with her. The Tana Kama rules that the woman becomes prohibited to both of them. Rebbi Shimon rules that she remains permitted to the first Katan.

RASHI asks how is it that she remains permitted to the first Katan? After the second Katan lives with her, she becomes a Sotah, for she committed adultery with him! Rashi adds that even though the adulterer was a Katan, nevertheless his Bi'ah is considered a real Bi'ah and she is punishable with Misah for such a Bi'ah. Rashi answers that when she lived with the second Katan, she did so b'Shogeg (inadvertently), not realizing that it was not her husband, or not aware that it was prohibited, and therefore she does not become a Sotah and she remains permitted to her husband.

It seems that Rashi is following his view (in Kidushin 19a, DH d'mid'Oraisa; see Insights to Yevamos 39a) that the Yibum performed by a nine year-old is considered a valid Yibum mid'Oraisa, and therefore the act of Yibum creates a bond of Kidushin, and the woman will become a Sotah if she lives with someone else after doing Yibum with the nine year-old.

Even so, Rashi's words are difficult to understand. Rashi writes that "the Bi'ah of a nine year-old is a real Bi'ah and she is killed for the Bi'ah (having adultery) with a nine year old." However, the Gemara in Kidushin (19a) clearly says otherwise. The Gemara there derives from a verse that a man who commits adultery with the wife of a Katan (and the wife herself as well) is *exempt* from punishment! Even according to Rashi -- who learns that there is Kidushin mid'Oraisa with a Katan -- there still is no punishment of Misah mid'Oraisa because the verse excludes adulterers from punishment in such a case! (TOSFOS YESHANIM, RABEINU AVRAHAM MIN HA'HAR)

ANSWER: The MAHARSHA and YASHRESH YAKOV explain that Rashi does not mean that in *this* case, when the woman is married to a nine year-old, the woman can be killed for committing adultery with another nine year-old. Rather, Rashi means that in a case where she is married to a *Gadol*, she would be killed for committing adultery with a nine year-old. (This is similar to what Rashi writes on 51b, DH Bi'as Sheni.) Rashi is simply proving from the fact that she would be killed for committing adultery with a nine year-old, in a normal case when she is married to a Gadol, that the Bi'ah of a nine year-old is considered a Bi'ah and can make her Asur to her husband.

Accordingly, there is no longer proof from here that Rashi is following his view that the Yibum of a nine year-old is mid'Oraisa. Even if his Yibum is only mid'Rabanan and has the status of Ma'amar, Rashi could still ask that she should become Asur from the Kidushin *d'Rabanan* with the Katan if she lives with someone else after the Yibum (as TOSFOS writes on 51b, DH Iy Bi'as Rishon). However, even though there is no proof from Rashi's words here, Rashi does seem to hold that the Yibum of a nine year-old is mid'Oraisa (in Kidushin, loc. cit., and in Sanhedrin 55a, DH Kan'ah; see Insights to 39a).

The RAMBAN here points out that Rashi later on this Amud seems to contradict himself and say that a nine year-old's Yibum is *mid'Rabanan*. Rashi (DH Harei Zu Peturah) writes that a Katan cannot be *Mekadesh* a woman with normal Kidushin until he show signs of maturity and grows two hairs. However, the Rabanan gave his act of *Yibum* with her the status of Ma'amar, because she is already Zekukah to him. Rashi seems to be saying that the Rabanan are *instituting* a new bond of Kidushin, and not *removing* a bond of Kidushin, when they say that a Katan's Yibum is equated to Ma'amar (see Yashresh Yakov)!

In light of what we quoted from Rashi elsewhere, it is likely that Rashi here does not mean that the Rabanan are *creating* the bond of the Katan's Yibum. Rather, Rashi is saying that if the Rabanan invalidated the Yibum d'Oraisa of a nine year-old and ruled that it does not create a true bond because a regular Kidushin done by a nine year-old is not valid, then they should not have given it even the status of Ma'amar! They should have said that after a Katan lives with his Yevamah, it is as if nothing happened and she remains a Yevamah and is permitted to the other brothers! To that question, Rashi answers that since she is Zekukah to the Katan, the Rabanan said that there is a bond between them, even though he is a Katan.

How, though, can Rashi be asking that the Rabanan should have instituted that the Yibum of a Katan is completely invalid, and does not even have a status of Ma'amar? Mid'Oraisa, the woman is married to the Katan who did Yibum with her, and she is an Eshes Ish and needs a Get. Certainly, she cannot do Yibum with any of the other brothers after that! The Katan's Yibum should at least be like Ma'amar as far as prohibiting her to the other brothers!

The answer is that Rashi means that the Rabanan should have made it like Ma'amar *only* with regard to prohibiting her from doing Yibum with the other brothers, and not like Ma'amar with regard to anything else. There are other ramifications of Ma'amar that the Rabanan should not have instituted. Rashi in Nidah (45a) and in Sanhedrin (55b) writes that once the nine year-old lives with the Yevamah, he is considered like her husband and inherits her property. Apparently, Ma'amar grants a Yavam the property of his brother, and since a nine-year-old's Bi'ah is like Ma'amar, he, too, inherits the Yevamah's property. Rashi here is asking that the Katan's Yibum should not have the status of Ma'amar with regard to inheriting her, mid'Rabanan. To that, Rashi answers that since she is Zekukah to him, the Rabanan allowed his Yibum to have the status of Ma'amar in all respects. That is what the Beraisa (96a) means when it says "the Rabanan made the Bi'ah of a nine-year-old like the Ma'amar of a Gadol." They allowed him to acquire his brother's property just like a Yavam who does Ma'amar.

AGADAH: The Gemara relates that Rebbi Yochanan was very upset with Rebbi Elazar for not repeating the teachings of Rebbi Yochanan in his name, because when one relates teachings in the name of the Rebbi who said them, then the Rebbi's "lips move in the grave" and it is as if he is still alive (Rashi). Based on this, the MAHARSHA (Mahadura Basra) suggests a marvelous interpretation of why Yakov was so upset at the news of Yosef's death.

(a) When Yakov heard that Yosef died, he refused to be comforted, saying, "I will descend to the grave in mourning" ("Ki Ered El B'ni Avel She'olah" -- Bereishis 37:35). He did not say "b'Yagon She'olah," as he said when he protested against the brothers taking Binyamin to Mitzrayim (Bereishis 42:38) but rather "*b'Evel* She'olah." Why the change in expression?

We know that Yakov Avinu taught Yosef, to the exclusion of his other sons, everything he learned from Shem and Ever (Rashi, Bereishis 37:3). When Yakov was told that Yosef had died, he thought that no one will be able to repeat his teachings. This worried him -- as it did Rebbi Yochanan -- because as a result, after he dies he will be like an Avel who "has no mouth" (Rashi, Bereishis 25:30). His lips will not move since no one will be repeating his teachings, causing his lips to move in the grave.

This is what Yakov meant when he refused to be comforted "*Because* ("Ki") I will descend to the grave in mourning." He meant, "I might be comforted for the loss of my precious son, but how can I be comforted for the loss I will endure after I reach the World of Truth, when I will be mute, like an Avel!"

(b) When Yakov was finally reunited with Yosef, he declared "Amusah ha'Pa'am" -- "Now I can die after having seen your face" (Bereishis 46:30). After seeing that Yosef was still alive, Yakov was no longer afraid to die, because Yosef would teach Yakov's teachings and thereby cause Yakov's lips to move in the grave, keeping Yakov alive, so to speak, even after his death.

(c) The Gemara in Megilah says that one of the presents that Yosef sent to Yakov was old wine. With this present, he hinted to his father that he need not fear silence in the grave.

The Yerushalmi in Shekalim says that the pleasure the deceased has when someone says over his teachings is comparable to the pleasure of a person "who drinks old wine; even after drinking it, the taste remains in one's mouth for a long time." Yosef was hinting that he did not forget any of the teachings of Yakov. As Rashi says (Bereishis 45:27), he sent Yakov "Agalos" to remind him of the last Halachic discussion they had together. The old wine meant that Yosef would repeat his father's teachings after Yakov's death, and Yakov's lips would move in the grave, like one who drinks old wine and continues to have pleasure from the taste after the drink is finished.

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