QUESTION: The Gemara quotes the Mishnah earlier (104b) that states that
Chalitzah cannot be performed by a Cheresh or by a Chareshes. The Gemara,
both here and there, explains that the reason is because they are unable to
speak, and in order to do Chalitzah one must say the words in the Parshah of
Chalitzah (Devarim 25:7-8). However, a Cheresh or Chareshes are able to do
*Yibum*, as we see from the Mishnah here.
There is a basic question on this Gemara. If a Cheresh and Chareshes cannot
do Chalitzah, then why should they be able to do Yibum? The Rishonim tell us
that there is a rule that whenever Chalitzah cannot be done, Yibum also
cannot be done, just as the Gemara (44a) teaches that whenever Yibum cannot
be done, Chalitzah cannot be done (see TOSFOS 44a, DH u'Neyabem). How, then,
can a Cheresh -- who cannot do Chalitzah -- be able to do Yibum?
ANSWER: TOSFOS (44a, DH Kol sh'Eino) asks this question. Tosfos answers that
the only reason a Cheresh cannot do Chalitzah is because he cannot pronounce
the words that must be recited as part of the Chalitzah procedure. It is not
that a Cheresh is unfit to do Chalitzah as a person; rather, he is fit to do
Chalitzah, but there is something impeding his performance of the Chalitzah.
He is like a person whose mouth hurts him and he cannot talk (as the Gemara
on 104b says). Therefore, a Cheresh is considered someone fit for Chalitzah,
and thus he may do Yibum.
Tosfos seems to be following his reasoning as expressed elsewhere (104b, DH
v'Ha Amri), where he says that even a person who does not have Da'as is able
to do Chalitzah, as we find in the Gemara (105b) that a Ketanah is able to
do Chalitzah even though she does not have Da'as.
Why, though, can a Ketanah or Chareshes do Chalitzah if she cannot have the
proper intentions in mind (Kavanah)? After all, the Gemara (106a) says that
Chalitzah is valid only when one has the proper intentions in mind!
Tosfos answers that since Chalitzah is done in the presence of Beis Din and
they tell the Ketanah or Chareshes to have Kavanah, she is able to have
sufficient Kavanah for Chalitzah (as we find in Gitin 22b, regarding a Katan
writing a Get Lishmah). (Even though the Tosefta (Perek 11) tells us that a
woman who is a Shotah cannot perform Chalitzah, that is because a Shotah has
such little Da'as that even when the Beis Din tells her what Kavanah to
have, she is unable to have Kavanah l'Shem Chalitzah.)
The other Rishonim argue with Tosfos and give other reasons why the
Chalitzah of a Cheresh is not valid. The RAMBAN, RASHBA and RITVA (104b)
explain that a Cheresh indeed lacks Da'as, and for that reason he cannot
perform Chalitzah -- not simply because he cannot speak the words. (A
Ketanah, however, is able to do Chalitzah, because she does have enough
Da'as to have proper Kavanah for Chalitzah, see RASHBA Chulin 12b.)
According to these Rishonim, why does the Gemara say that a Cheresh is Pasul
from Chalitzah because "he cannot speak?"
The Ramban and Ritva answer that the Gemara is discussing a Cheresh who is
able to speak, but who cannot hear. When the Gemara says that the reason he
cannot do Chalitzah is because he cannot speak, it means that he is unable
*to hear* what the *other party* is speaking. The Rashba (104b) writes that
although a Cheresh is Pasul for Chalitzah because he has no Da'as, the
Gemara says he is Pasul because he is unable to speak, in order to teach us
that even an *Ilem* -- who can hear but cannot speak -- is also excluded
from doing Chalitzah.
According to these Rishonim, what is the Halachah regarding a Cheresh who is
not able to speak nor hear? Can he do Yibum? If such a Cheresh is considered
to have no Da'as, then he is completely Pasul from doing Chalitzah and thus
he should not be able to do Yibum!
It seems that these Rishonim disagree with Tosfos (44a) and hold that the
rule that Yibum is dependent on Chalitzah works only one way: if one is not
fit to do Yibum, then one cannot do Chalitzah. It does not work the other
way around, that if one is not fit to do Chalitzah, then he cannot do Yibum.
Rather, even if one is not fit to do Chalitzah, he is still able to do
Yibum. Indeed, none of the Rishonim mention this logic of Tosfos at all.
QUESTION: The Mishnah (110a) states that if two Tzaros, a Ketanah and a
Chareshes, fall to Yibum together, the Yibum or Chalitzah of one does not
exempt the other. The Gemara explains that the reason is because it is
assumed that the deceased brother preferred either the Ketanah or the
Chareshes, and whichever one he preferred as his wife is considered the main
wife whose Yibum or Chalitzah exempts the other wife. Since we are in doubt
which wife the brother preferred, neither one can exempt the other. Rashi
quotes this reason in the Mishnah.
However, a few lines later the Gemara gives a completely different reason
for why the Yibum or Chalitzah of a Chareshes or Ketanah does not exempt the
other! The Gemara says that the Kinyan of a Chareshes is a "half-Kinyan,"
while the Kinyan of a Ketanah is a Safek Kinyan -- it might be a fully valid
Kinyan, and it might not be a Kinyan at all. It is because of *that* doubt
that neither one can exempt the other. This seems to be an entirely
different reason than the one the Gemara just gave a moment earlier! How do
we reconcile these two Sugyos?
(a) When the Gemara says that there is a doubt which wife the deceased
brother preferred -- the Chareshes or Ketanah, Rav Ada bar Ahavah suggests
that if the dead brother himself was a Cheresh, then obviously he preferred
the Chareshes over the Ketanah. Rav Nachman rejects this and says that even
if the brother was a Cheresh, we are still in doubt which wife he preferred,
the Chareshes or Ketanah.
It is possible that Rav Nachman argues because he understands the Safek to
be an entirely different question. Rav Nachman holds that it does not depend
on whether the first husband was more fond of one type of wife than the
other. Rather, he holds that it depends on whether the Kinyan of a Ketanah
is a stronger or weaker Kinyan that that of the Chareshes. Accordingly, the
rest of the Gemara follows the opinion of Rav Nachman and discusses only the
question of the strength of the Kinyan of the Ketanah relative to the Kinyan
of the Chareshes.
(b) However, the RASHBA (Teshuvos 1:1196) has a slightly different Girsa in
the Gemara. According to his Girsa, it is clear that even Rav Nachman holds
that the question is which wife the Cheresh preferred. Rav Nachman holds
that even though the brother was a Cheresh, he might have preferred the
Ketanah over the Chareshes.
The Rashba explains that the Sugyos actually argue with each other, and the
Gemara is indeed changing its explanation of the Mishnah at this point.