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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Yevamos 39


1) Rava disagrees with Abaye. If the Yevamah inherited the property whilst she was married, Rava maintains - Beis Hillel will hold that the heirs of her husband will share it, because, in his opinion, her husband's hand is stronger than her's, and the Yavam's, equal.


(a) Rava therefore establishes even the Seifa of our Mishnah when the Yevamah inherited the property when she was a Shomeres Yavam, and Beis Shamai rule 'Yachloku' - because the Mishnah speaks when the Yavam made Ma'amar, and, in this regard, Rava holds, Ma'amar makes her a Safek Nesu'ah.

(b) Rava hold that, according to Beis Shamai, Ma'amar makes a Yevamah a Vaday Arusah - to push away the Tzarah (who is the Ba'alas Ma'amar's sister) completely because of Achos Ishto, allowing her to marry le'Shuk.

(c) Rebbi Elazar was quoted as learning like Rava, and Rebbi Yossi b'Rebbi Chanina, like Abaye (though they lived long before them). Initially, in order to conform with Rebbi Elazar above (29b.), who said that Ma'amar is only Koneh to push away the Tzarah - we amend this pairing, to say that it is Rebbi Yossi b'Rebbi Chanina who learns like Rava, and Rebbi Elazar, like Abaye.

(d) We finally pair Rebbi Elazar with Rava - by restricting the implication of his earlier statement. All he really meant to say was that Ma'amar is not sufficiently strong to exempt the Yevamah from Chalitzah, but not that the Yavam is not Koneh the woman's inheritance.

(a) Rav Papa supports Abaye's interpretation of our Mishnah from the Lashon of 'Nechasim ha'Nichnasim ve'ha'Yotz'in Imah' - which he interprets to mean that it enters the possession of her husband and then leaves it when she dies, to enter the father's possession, implying that she inherited the property when she was married (not like Rava).

(b) He does concede however, that a Kashya remains on Abaye's explanation from 'Meisah' - the same Kashya that Rabah asked above on Ula ('Why do Beis Shamai and Beis Hillel argue over the property, when she is dead, and not over the fruit whilst she is still alive')?

(c) 've'Su Lo Midi' means - that this is the last word on the matter (that Abaye is vindicated).

(a) Rebbi Yossi b'Rebbi Chanina explains that, when the Tana of our Mishnah says that, after Yibum, the Yevamah becomes the Yavam's wife in all regards, he means that he sends her away by means of a Get, and that he is even permitted to take her back. It is not so obvious that if he wishes ...
1. ... to send her away, he must give her a Get - because the Torah writes "u'Lekachah Lo le'Ishah ve'Yibmah", which we might have interpreted to mean that the original Yibumin remains with her, and he can only send her away with Chalitzah.
2. ... to take her back, he may - because, having performed the Mitzvah, we might have thought that, once he divorces her, the initial Isur of Eishes Ach returns.
(b) We know that, having performed the Mitzvah of Yibum, once he divorces her, she is not forbidden to him because of Eishes Ach - because the Torah writes "u'Lekachah Lo le'Ishah", from which we learn that, once he performs Yibum with her, she becomes his wife, in the full sense of the word.

(c) When the Tana says that the Yevamah's Kesubah is paid entirely by her first husband - he means that the Yavam's property is not mortgaged for her Kesubah, in which case he is permitted to sell it, when and as he wishes. This is because Hashem granted him a wife without the financial obligations connected with a Kesubah.

(d) The Rabbanan nevertheless instituted that, if her first husband left no property, she receives a Kesubah from the second one - in order to safeguard her, because a woman without a Kesubah is that much easier to divorce.

(a) We learn from the Pasuk "ve'Hayah ha'Bechor" - that the prime Mitzvah of Yibum lies on the B'chor.

(b) Should he refuse, one goes to the other brothers. If they too, refuse - one places the Mitzvah at the doorstep of the B'chor.

(c) If the oldest brother ...

1. ... says to wait for a brother who is a Katan and who wants to perform Yibum - we decline to do so.
2. ... says to wait for another brother to return from overseas - we decline also.
3. ... at home says to wait for the return of the first-born who is overseas - we still decline, because we do not delay a Mitzvah.
(d) If the oldest brother pushes her on to a brother who is a Cheresh or a Shoteh (who want to perform Yibum) - we do not force her to accept this against her will.
(a) Rebbi Yochanan and Rebbi Yehoshua ben Levi argue over which takes precedence, the Yibum of a Katan or the Chalitzah of a Gadol. Katan in this context - means a younger brother. It cannot mean a minor, either because their Yibum and Chalitzah are not valid or because the Sugya later implies that it means a younger brother, and not a minor.

(b) One holds that Yibum (even of a younger brother) takes precedence over Chalitzah, whereas according to the other, when there is a Gadol, the Chalitzah of a Katan is invalid.

(c) We try to resolve the She'eilah from the Reisha of our Mishnah 'Lo Ratzah, Machzirin al Kol ha'Achin' - which we initially interpret to mean that the B'chor does not want to perform Yibum, only Chalitzah (from which we see that the Yibum of a Katan takes precedence).

(d) We refute this, by explaining 'Lo Ratzah' to mean that he does not want to make Chalitzah either. This creates a problem with the continuation of the Mishnah, however: 'Lo Ratzu, Chozrin Eitzel Gadol'. If the Mishnah speaks when none of the brothers want to perform Yibum or Chalitzah - what is the point of throwing the ball back into the B'chor's court, just to perform Chalitzah? What difference does it make by which brother Chalitzah is performed?

(a) We answer the previous Kashya by saying that since, when all's said and done, the Mitzvah begins with the oldest brother, it also ends with him. We do not want to say this initially - because we thought that for that, it is not worthwhile troubling the Beis-Din to reconvene.

(b) There is no proof (that Chalitzas Gadol is preferable) from the fact that we do not wait for the Katan to grow up (in case he performs Yibum) - because the reason that we do not wait is in order not to delay a Mitzvah, as we said earlier.

(c) We prove this from the Seifa 'u've'Gadol ad she'Yavo mi'Medinas ha'Yam, Ein Shom'in Lo' - because here, we should certainly wait for the B'chor to return, to perform either Yibum or Chalitzah (seeing as the prime Mitzvah lies with the B'chor).




(a) According to the second Lashon, both Rebbi Yochanan and Rebbi Yehoshua ben Levi agree that the Yibum of a Katan is preferable to the Chalitzah of a Gadol - their dispute is whether the Chalitzah of the Gadol is preferable to that of a younger brother or not.

(b) One of them holds that the Chalitzah of a Gadol is preferable to that of a Katan, because 'Mitzvah be'Gadol ... ' - the other, that it is only his *Yibum* that takes precedence, but when it comes to Chalitzah, there is no difference which brother performs it.

(c) We try to resolve this She'eilah from our Mishnah 'Lo Ratzu, Chozrin Eitzel Gadol', which we think means that they did not want to perform Yibum, only Chalitzah - nevertheless, we place the obligation to perform Chalitzah at the door of the B'chor (proving that the Chalitzah of a Gadol is preferable to that of a Katan).

(d) We refute this proof by explaining 'Lo Ratzu' to mean that they want to perform neither Yibum nor Chalitzah. Assuming that the Chalitzah of a Gadol is preferable, we not wait for the Gadol to come from overseas to perform Chalitzah - because we do not delay a Mitzvah, as we have already explained.

(a) The Mishnah later in the Perek states that the Mitzvah of Yibum takes priority over that of Chalitzah. Chazal later switched the order of priorities to give Chalitzah precedence - because, whereas originally, people used to perform the Mitzvah of Yibum for the sake of the Mitzvah (like Aba Shaul), they then began to perform it for other motives (which, according to Aba Shaul, invalidates the Mitzvah, leaving the sin of Eishes Ach intact).

(b) Rav maintains that, nevertheless, one does not forbid the Yavam to perform Yibum should he so wish - provided the Yevamah agrees, (because we have a number of Gemaros which explicitly state that we do not force her to perform a Yibum that is unpleasant for her. See also Tosfos DH 'Amar Rav').

(c) When a Yavam and Yevamah came before Rav, he would quote them the Pasuk "Im Lo Yachpotz ha'Ish" - which implies that the Yavam has the choice of performing either Yibum or Chalitzah (forbidding Beis-Din to force them to perform Chalitzah against their will), and indeed, Rav would offer each Yavam the choice of Yibum or Chalitzah.

(a) Rav Yehudah inserted in the Lashon of the Sh'tar Chalitzah 'I Tzavis le'Yabeim, Yabeim, ve'I Lo, Itla Lah Raglech de'Yamina ... ' - demonstrating that, he too, holds like Rav.

(b) Rebbi Chiya bar Ivya in the name of Rav Yehudah added to the Sh'tar - ve'Akrinhu (and we read out) Mah di'Ch'siv be'Seifer Oraysa'.

(c) 've'Ishtemod'inhu de'Achuha de'Misna me'Aba Nihu' means - that it was known to the Beis-Din that the Yavam was the paternal brother of the deceased, either through two Kasher witnesses, or even through a single witness (even if he is a relative or a woman).

(d) Rav Acha and Ravina dispute this point. In fact - the latter interpretation is the correct one, because this information requires no more than a revelation, and is not considered real testimony.

(a) Rami bar Chama Amar Rav Yitzchak says that nowadays, the Mitzvah of Yibum takes precedence over that of Chalitzah, not because of 'Achshur Dari', as Rav Nachman bar Yitzchak suggested (with tongue in cheek) - but because whereas initially they ruled like Aba Shaul, they later changed their minds to rule like the Rabbanan, who validate Yibum, whatever the motive.

(b) Aba Shaul - invalidates Yibum that is performed for any motive other than Lishmah (for the sake of the Mitzvah).

(a) When the Tana of the Beraisa says that initially, the Yevamah was permitted, then she became forbidden - he means that before the Yavam's brother married her, she was permitted to him, to become forbidden after he married her.

(b) The Beraisa concludes 'Yachol Tachzor le'Heteirah ha'Rishon, Talmud Lomar "Yevamah Yavo Alehah", Mitzvah' which Rav Yitzchak bar Avdimi establishes according to Aba Shaul - by amending 'Mitzvah' to 'le'Mitzvah', meaning that now, he must perform the Mitzvah Lishmah.

(c) Rava establishes the Beraisa even like the Chachamim (without needing to amend 'Mitzvah' to 'le'Mitzvah') - because 'Mitzvah' means that he does not have the equal choice of performing either Yibum or Chalitzah, because it is a Mitzvah to perform Yibum (rather than Chalitzah).

(d) We refute the Gemara's initial contention (that 'Mitzvah' comes to preclude from 'Ratzah Konsah, Raztah Eino Konsah', like it was before she married his brother) - since that implies that he has a choice of not performing Yibum and of leaving her, which is impossible, because he is tied to her with a Zikah. (So we amend it to 'Ratzah Konsah, Ratzah Choletz Lah'.)

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