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Yevamos, 110


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.

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