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Yevamos, 111


OPINIONS: The Mishnah discusses a number of cases in which a Ketanah and her Tzarah fall together to Yibum, and the Yavam lives with both of them (or he and his brother each take one of them). The Mishnah concludes with the view of Rebbi Elazar, who states that we instruct the Ketanah to do Mi'un, because by doing Mi'un she prevents her Tzarah from becoming Asur to the Yavam.

According to the Girsa of the Rif and other Rishonim, Rebbi Elazar says "*in all of the cases* ("b'Chulan") we instruct the Ketanah to do Mi'un." Is Rebbi Elazar actually arguing that in *all* of the cases of the Mishnah, the Ketanah should do Mi'un? The Mishnah discusses not only cases of a Ketanah and a Gedolah who are Tzaros, but also a Ketanah and a Chareshes who are Tzaros. In the case of a Ketanah and a Chareshes, where the Yavam lived with both of them, does Rebbi Elazar also hold that we instruct the Ketanah to do Mi'un so that the Chareshes will not be Asur to the Yavam?

(a) The RA'AVAD on the Rif and on the Rambam (Hilchos Yibum 5:24) writes that we do not instruct a Ketanah to do Mi'un when her Tzarah is a Chareshes. He explains that the Gemara's reason for instructing a Ketanah to do Mi'un is because "Gedolah Ramya Kamei" -- by doing Mi'un, the Ketanah enables the Gedolah to fulfill her Chiyuv d'Oraisa of Yibum. In contrast, a Chareshes has no Chiyuv d'Oraisa to do Yibum, and therefore we do not instruct the Ketanah to do Mi'un just so that the Chareshes can do Yibum.

(b) The RAMBAN and other Rishonim disagree with the Ra'avad. The Ramban says that the only reason that the Gemara (109b) gives to "distance oneself from Mi'un" is because after the Ketanah grows up she will regret doing Mi'un and will be left without a husband. In the case of the Mishnah, though, where the Yavam lived with the Chareshes after living with the Ketanah, the Ketanah becomes Asur to the Yavam in any case (and she will have to do Chalitzah and receive a Get if she does not do Mi'un)! Therefore, there is no point in discouraging her from Mi'un.

Why, then, does the Gemara suggest that perhaps Rebbi Elazar only stated his ruling in the case of the previous Mishnah but not in the case of our Mishnah? And how could we suggest that he taught it only in the case of our Mishnah and not in the previous Mishnah, where the sister of the Ketanah who does Mi'un falls to Yibum to the Ketanah's husband? In any case, if the Ketanah does not do Mi'un in these cases she will be sent away with a Get, so we should certainly instruct her to do Mi'un! And why does the Tana Kama argue with Rebbi Elazar in these cases?

The RAMBAN explains that in our Mishnah, perhaps we should penalize the Yavam for living with the Chareshes (when it was prohibited to do so) after living with the Ketanah, and that is why we should not let the Ketanah do Mi'un. In the previous Mishnah, it might be preferable not to instruct the Ketanah to do Mi'un because we *do not want* her sister to fall to Yibum after her Mi'un. If her sister falls to Yibum after her Mi'un, it will look like the Yavam is marrying his "Achos Ishah" (since not everyone will realize that the Ketanah did Mi'un).

Therefore, when a Ketanah and Chareshes fall together to Yibum, and the Yavam does Yibum with the Ketanah and afterwards he also lives with the Chareshes, the Ketanah should do Mi'un so that it is as if she never fell to him, and the Chareshes will be permitted to the Yavam.

(c) The RAMBAM (Hilchos Yibum v'Chalitzah 5:28) rules that if the Yavam lived with the Chareshes and then the Ketanah, we do instruct the Ketanah to do Mi'un and to uproot the Zikah of Yibum from herself, leaving the Chareshes as the only Yevamah -- like the Ramban said. However, he adds that even after the Mi'un, the Chareshes should be divorced with a Get.

The RAMBAN, RASHBA and other Rishonim are dismayed with this ruling. If the Ketanah retroactively is not a Tzarah of the Chareshes (because of her Mi'un), then why does the Yavam need to divorce the Chareshes with a Get?

One might answer that even the Mi'un of the Ketanah does not help to permit the Chareshes, because at the time she fell to Yibum it certainly looked like the Ketanah was also a Yevamah, and therefore the Rabanan enacted that Bi'ah with her is Posel the Chareshes even after Mi'un. This cannot be the answer, though, because the Rambam himself (ibid. 5:30) writes that in a case where the Yavam lived with a Ketanah and then with a Gedolah, the Ketanah should do Mi'un and then the Gedolah retroactively becomes the only Yevamah and *is* permitted to the Yavam! If we suggest that Mi'un does not completely permit the other Yevamah (as in the case of the Chareshes), then we should say that the Gedolah is *not* permitted, because she became Pasul through the Yavam's Bi'ah with the Ketanah that preceded his Bi'ah with her.

Because of this problem, the Rishonim reject the ruling of the Rambam.

The VILNA GA'ON (EH 171:13) points out that the Rambam himself answers this question. The answer is indeed that the Rabanan enacted that the Bi'ah of the Ketanah before Mi'un is Posel the Chareshes, as suggested above. However, in the case of the Gedolah and Ketanah, where the Yavam lived with the Ketanah and then with the Gedolah, the Yavam may remain with the Gedolah because, as the Rambam writes, the Kinyan of the Gedolah is a "Kinyan Gamur" (i.e. a Kinyan d'Oraisa). The Rabanan did not enact that Bi'ah before Mi'un can disqualify a "Kinyan Gamur." It can only disqualify a Kinyan that is not complete (i.e. a Kinyan d'Rabanan), such as the Kinyan of a Chareshes.

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