THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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YEVAMOS 29 & 30 - sponsored by Hagaon Rav Yosef Pearlman of London, a living
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1) REQUIRING AN "ISUR ERVAH" TO DO CHALITZAH
QUESTION: Rebbi Shimon holds that if two women who are related (sisters, or
mother and daughter) were married to two brothers who died childless,
mid'Oraisa neither woman needs Yibum or Chalitzah. If, however, one sister
is only an Isur Mitzvah (that is, she is Asur to the Yavam because of an
Isur d'Rabanan) or an Isur Lav, then that sister needs Chalitzah.
The Gemara asks that if two sisters are exempt from Yibum mid'Oraisa when
they fall to Yibum together, then why should they need Chalitzah when one is
also Asur mid'Rabanan to the Yavam for a different reason. Mid'Oraisa, two
sisters do not have a requirement of Yibum or Chalitzah!
The Gemara answers that even though there is no reason to require Chalitzah
mid'Oraisa, the Chachamim enacted that Chalitzah be done so that people not
make an error and think that an Isur Mitzvah who falls to Yibum by herself
(without her sister or another close relative) and is the only Yevamah does
not require Chalitzah. In addition, the Chachamim also required that the
sister of the Isur Mitzvah do Chalitzah, lest people think that just as the
Tzarah does not require Chalitzah (because she is one of two sisters) the
Isur Mitzvah does not require Chalitzah either (since she is the other
sister), without realizing that the Chachamim enacted Chalitzah for the Isur
Mitzvah in this case.
The Gemara asks that if the Chachamim made such Gezeiros, then they also
should have made a similar Gezeirah in the case of an Isur Ervah who falls
to Yibum as well
What is the Gemara asking? In the case of an Isur Ervah who falls to Yibum,
even when she falls to Yibum by herself and is the only Yevamah, she does
not need Yibum or Chalitzah! Why, then, does the Gemara ask that the
Chachamim should have made a Gezeirah requiring Chalitzah for an Isur Ervah
who falls to Yibum with her sister?
ANSWERS: RASHI explains the Gemara's question two different ways, in
consecutive comments. (For this reason, the MAHARSHA is Gores "Lishna
Acharina" at the beginning of the second DH Migmar Gemiri.) Rashi's
comments, though, are terse; the two approaches are spelled out more clearly
in Tosfos Yeshanim here.
(a) Rashi's first answer matches that of TOSFOS and the first answer of
TOSFOS YESHANIM. The Gemara is referring to a case where two sisters fall to
Yibum, and one of them is an Ervah to the remaining brother. In that case,
says the Gemara, the Chachamim should have made a Gezeirah requiring the
woman who is an *Ervah* to do Chalitzah. The reason she should need
Chalitzah is the same reason for which Chalitzah was enacted to the *Tzarah*
of an Isur Mitzvah. We do not want people to think that she is not falling
to Yibum because of the Halachah that two sisters who fall together to Yibum
are exempt, and mistakenly say that her sister (who is not an Ervah) is also
exempt completely from Yibum or Chalitzah.
Rashi (DH v'Ha) seems to have been bothered by one point about this
question. How could the Gemara suggest that an Ervah should perform
Chalitzah due to a Gezeirah? We find elsewhere (Yevamos 31a) that Chachamim
took care not to institute Chalitzah when Yibum may not be performed, since
"If we tell them to do Chalitzah, someone may think that Yibum may be
performed as well." Perhaps, then, the Chachamim did not institute Chalitzah
to an Ervah for this reason, whereas they did institute Chalitzah for the
Tzarah of an Isur Mitzvah.
Rashi answers this question by pointing out that the Tzarah of an Isur
Mitzvah is also an Ervah mid'Oraisa, and yet the Rabanan instituted that she
perform Chalitzah. Since she is Halachically exempt from Yibum according to
Rebbi Shimon (due to the law of two sisters who fall together), her status
is equivalent to that of an "Eshes Ach she'Yesh Lah Banim," a woman whose
husband left behind children at the time of his death, and she is prohibited
to her brother in law with an Isur Kares.
(b) Rashi and TOSFOS YESHANIM suggests a second answer. Again, the Gemara is
referring to a case where two sisters fall to Yibum, and one of them is an
Ervah to the remaining brother. The suggested Gezeirah, though, is not to
require that Chalitzah be performed by the woman who is an Isur Ervah, but
that the Chachamim should have prohibited the sister who is *not* an Ervah
from doing *Yibum*, as a Gezeirah lest people permit Yibum in a case of two
sisters who are not Arayos to the Yavam (in which case Yibum is not
permitted and both sisters need Chalitzah).
(The advantage of this explanation is that the words "Migmar Gemiri Lah
Inshi" and "v'Kala Is Lah" in the Gemara's answer are not repetitive. The
former phrase is referring to the Ervah, while the latter phrase is
referring to the Tzarah of the Ervah; even she has a Kol, and it will be
known to all why Yibum was permitted in her case. According to the first
explanation of the Gemara, both phrases are referring to the Ervah
herself -- M. Kornfeld)
2) TO WHAT EXTENT IS "MA'AMAR" CONSIDERED MARRIAGE
QUESTION: Beis Shamai says that when a Yavam does Ma'amar with a Yevamah, he
is Koneh the Yevamah. The Gemara asks that this contradicts an earlier
statement of Beis Shamai. In the Mishnah earlier (17a), Beis Shamai says
that when two sisters fall to two brothers for Yibum, both must do
Chalitzah. According to Beis Shamai (who holds that Ma'amar is Koneh),
though, the two brothers should do Ma'amar and then Yibum, because once one
does Ma'amar, he releases ("Docheh") the Tzarah so that she is no longer
Zekukah to him, permitting Yibum!
3) IS THE "KINYAN" OF "MA'AMAR" D'ORAISA OR D'RABANAN ACCORDING TO BEIS
The Gemara answers that only "Ma'amar of Heter" can be Koneh the Yevamah
such that her Tzarah is released from Zikah completely. In contrast,
"Ma'amar of Isur" (such as doing Ma'amar with one of two sisters, with whom
one could not have otherwise done Yibum), is not strong enough to be release
the Tzarah, and thus the Isur of "Achos Zekukaso" remains.
The Gemara continues that according to Rav Ashi, Beis Shamai says Ma'amar is
Koneh only to be Docheh the Tzarah *partially* -- she is not considered
"Achos Zekukaso," but she does need Chalitzah. The Gemara tries to prove Rav
Ashi correct from the same Mishnah question that it quoted before (on 17a),
in which we find that Beis Shamai says that when two sisters fall to two
brothers for Yibum, both must do Chalitzah. According to Beis Shamai's
opinion that Ma'amar is Koneh, Beis Shamai should say that the two brothers
can do Ma'amar and then Yibum! (This is the exact same proof mentioned in
the two previous paragraphs.)
The Gemara answers that "when a Yevamah is fit to do everything (both
Chalitzah and Yibum), then she is also fit to do a partial form (Ma'amar);
but when she is not fit to do everything (both Chalitzah and Yibum), then
she is not fit to do a partial form (Ma'amar)."
This answer seems to be the same answer that the Gemara in the previous
version gave: There is a difference between "Ma'amar of Heter" (Ma'amar in a
situation where Yibum could also be done) and "Ma'amar of Isur!" Why does
the Gemara change its wording if it is giving the same answer as before?
(TOSFOS 29a, DH Ela)
(a) The ARUCH LA'NER suggests that the answer that the first version gives
holds that "Yesh Zikah" (as TOSFOS says on 18b, DH Omrim). When the Gemara
refers to "Ma'amar of Isur," it refers to Ma'amar (even without consummating
the union) that is done with a woman who is "Achos Zekukaso," in which case
one is doing an Isur d'Rabanan by doing even *Ma'amar* with her! That is why
the Gemara says that "Ma'amar of Isur" is not strong enough to break the
bond of Zikah, since it is done by *transgressing* an Isur d'Rabanan.
In contrast, the second version is saying that even if we hold "Ein Zikah,"
we could still answer the question. Even though, if we say "Ein Zikah,"
Ma'amar is not being done through an Isur since "Achos Zekukaso" is not
prohibited, nevertheless Ma'amar is not strong enough to be Docheh the
sister who is a Tzarah in a case where *Yibum* cannot be performed with the
same woman. (That is, even according to the opinion of "Ein Zikah," *Yibum*
cannot be done with the first sister because of the Isur of "Bitul Mitzvas
RASHI, though, does not take this approach. He writes clearly that "Ma'amar
of Isur" does not refer to a situation where one transgresses an Isur by
doing Ma'amar (since Ma'amar alone, without Yibum, is never prohibited).
Rather it refers to a Ma'amar with a woman with whom one cannot do Yibum.
Furthermore, Rashi says that the second version in the Gemara also holds
that "Yesh Zikah," and that is the reason why there is an Isur to do *Yibum*
with each sister! Hence, the Aruch la'Ner's approach will not answer the
problem according to the explanation of Rashi.
(b) The difference between the two versions might be whether Ma'amar can be
effected *in the first place* with a woman with whom Yibum cannot be done.
The first Sugya is trying to explain the position of those who hold that
Ma'amar is a complete *Kinyan*. If so, it is a separate act of Kidushin that
is not related to, or dependent upon, the act of Yibum. As such, there is no
reason to say that if Yibum cannot be done then Ma'amar cannot take effect;
they are unrelated. The Gemara can only suggest that if one cannot do Yibum,
then there is a weaker bond of Zikah, and therefore the Ma'amar is weaker
and is not able to be Docheh the Tzarah.
The second Sugya, though, which does not mention the possibility that
Ma'amar is "Koneh," maintains that Ma'amar is not a full-fledged Kinyan, but
is just enough of a Kinyan to be *Docheh* the Tzarah. Accordingly, it stands
to reason that Ma'amar was instituted just as a preface to Yibum, and it is
not an independent Kinyan at all. According to this view, the Gemara says
that it is logical that if one cannot do Yibum with the woman, then it is
also not possible to have Ma'amar take effect with her in the first place.
(c) TOSFOS learns that the Gemara is *not* trying to reconcile the opinion
that Ma'amar is Docheh the Tzarah completely. The Gemara already rejected
that position. Rather, the Gemara is asking that since Ma'amar is not Docheh
the Tzarah completely, then why does the Mishnah say that the sister (of the
woman with whom Ma'amar was done) is released without Chalitzah? The Ma'amar
is not Docheh her completely, and thus the sister should require Chalitzah!
The Gemara answers that it depends on how strong the original Nefilah to
Yibum was. In our Mishnah the second sister, at the time that she fell to
Yibum, was already "pushed away" from the Zikah according to Beis Shamai
(because the Yavam was already Mekadesh the first sister with Ma'amar).
Therefore it is as if she never fell to Yibum in the first place and she
does not need Chalitzah. In contrast, if a woman falls to Yibum and
*afterwards* becomes "pushed away" from the Zikah (because Ma'amar was
later done with her sister), then that sister is not exempt from Chalitzah.
For example, in the case of the four brothers on 17a; Ma'amar will be Docheh
the other sister, but she will still need Chalitzah.
QUESTION: The Gemara discusses whether the Kinyan that is made by doing
Ma'amar is considered like Erusin or like Nisu'in. The Gemara asks how can
Ma'amar be more effective than a normal Erusin? Rashi explains the Gemara's
question is that a normal Erusin is d'Oraisa, while Ma'amar is only
d'Rabanan, so obviously Ma'amar cannot be considered Erusin. (Later in the
Gemara, the Gemara does entertain the possibility that Ma'amar is more
effective than Erusin, see MAHARSHA and RASHBA towards the end of the Daf.)
What does Rashi mean? The Gemara here is discussing the opinion of Beis
Shamai -- and it is Beis Shamai who says that Ma'amar is able to be Docheh
one's Tzarah completely so that she does not even need Chalitzah, and thus
Ma'amar must be d'Oraisa!
In addition, the Gemara earlier (18a) said that according to Beis Shamai, if
Reuven dies and his wife falls to Shimon who does Ma'amar with her; then
Levi is born and Shimon dies-- according to Beis Shamai, Shimon's wife is
"Tzaras Eshes Achiv she'Lo Hayah ba'Olamo" to Levi. The woman with which
Shimon performed Ma'amar is considered Shimon's wife, and exempts Shimon's
own wife from Yibum and Chalitzah. From this it seems clear that Ma'amar is
like a full-fledged marriage. If Ma'amar is d'Rabanan, like Rashi here says,
how can it exempt a woman from Chalitzah and Yibum? (TOSFOS 29a, DH Beis
(a) The RASHBA says that Rashi does not mean the Ma'amar is only d'Rabanan.
Rashi agrees that Ma'amar makes a Kinyan d'Oraisa, and when he says that it
is d'Rabanan he means that one is not Chayav Sekilah for having relations
with another man's Ba'alas Ma'amar, where one would be Chayav Sekilah if she
was completely married to the other man.
However, the TOSFOS HA'ROSH and others understand the words in Rashi in
their straightforward meaning, that Ma'amar is only d'Rabanan.
(b) The KESONES PASIM (cited by ha'Rav Aharon Yafen in his footnotes to the
Ritva) explains that according to Beis Shamai, Ma'amar certainly makes a
Kinyan of Yibum d'Oraisa. However, it does not make a Kinyan of *Ishus*
d'Oraisa, but only d'Rabanan (Ishus refers to the bond of marriage that
entitles the husband to certain benefits from his wife, such as those
mentioned in the Gemara here).
Rashi, though, does not seem to be saying that. Rashi seems to be saying
that Ma'amar is d'Rabanan because a Kinyan of Yibum d'Oraisa is made only
through Bi'ah, as the verse says, "Yevamah *Yavo Aleha*" (Devarim 25:5).
Thus, Rashi seems to be referring to the Kinyan of Yibum when he says that
Ma'amar is only d'Rabanan.
(c) The ARUCH LA'NER (29a) says that indeed, according to the opinion that
Ma'amar is only Docheh the Tzarah (and is not a complete Kinyan), Ma'amar is
only d'Rabanan. When Beis Shamai says that Ma'amar is Docheh the Tzarah such
that she does not need Chalitzah, that is only after the Yavam has relations
with her after the Ma'amar, like Tosfos (DH Ela) says in his explanation of
Rashi. Ma'amar serves to remove the Isur of "Achos Zekukaso," and then the
Bi'ah is Docheh the other sister, the Tzarah, completely. Hence, all that
Ma'amar accomplishes is that it removes the Isur of "Achos Zekukaso."
The Gemara earlier (on 18a) is following the opinion that holds that Ma'amar
is Koneh a complete Kinyan according to Beis Shamai, and thus the Kinyan is
d'Oraisa. That is why it makes the Ba'alas Ma'amar into a Tzaras Ervah in
(d) It is possible that Beis Shamai holds that Ma'amar is d'Rabanan, but
Zikah makes a woman as if she is "Kenusah" (married) *mid'Oraisa*, like
Rebbi Oshiyah says (on 18b -- according to some Rishonim, this is the
opinion of Rebbi Shimon in the Mishnah on 28b according to all Amora'im, see
RIVAN, RAV AVRAHAM MIN HA'HAR). Consequently, since Zikah is k'Kenusah," in
the case of our Mishnah, when the first sister falls to Yibum she is
considered to be married to the unmarried brother as soon as her husband
dies, because of Zikah (see Gemara top of 19a). Then, when the second sister
falls to Yibum, she does not need Yibum because her sister is considered
married to her Yavam, and thus she is an Ervah to him!
However, Beis Shamai holds that the *Chachamim* were Machmir that Zikah not
be "k'Kenusah" and that it does not make the woman as if she is married to
the Yavam. Instead, the Rabanan said to view her as not being married to the
Yavam (i.e., the Rabanan enacted that we should deal with the situation *as
though* Ein Zikah, l'Chumra). If so, in our Mishnah, the Zikah of the second
sister is only mid'Rabanan. That is why Ma'amar (with the first sister) is
able to release the second sister without Chalitzah. Ma'amar, which is only
d'Rabanan, is able to override the other Takanah d'Rabanan that says that
Zikah is *not* "k'Kenusah" and that requires that the Tzarah do Chalitzah!
The same applies in the case of "Eshes Achiv she'Lo Hayah ba'Olamo." As soon
as Reuven dies, Shimon is considered to be married to Reuven's wife, because
mid'Oraisa, Zikah is "k'Kenusah." Therefore, when Levi is born and Shimon
dies, Shimon's own wife is Asur to Levi because she is the Tzarah of an
Ervah (Reuven's wife, who was considered married to Shimon because of "Zikah
k'Kenusah"). (Beis Shamai does not hold of Rebbi Shimon's view with regard
to Eshes Achiv she'Lo Hayah b'Olamo.) The Chachamim, though, decreed that
Zikah not be considered as "k'Kenusah," and therefore Levi should have to do
Chalitzah with Shimon's wife (because mid'Rabanan she is not considered to
be a Tzarah to the wife of Reuven, who is "Eshes Achiv she'Lo Hayah
ba'Olamo"). For that, Ma'amar d'Rabanan is sufficient to remove the Takanah
d'Rabanan that Levi needs Chalitzah with Shimon's wife! (The same logic can
be applied to the ruling of Rebbi Shimon (in the Gemara on 19a) who is in
doubt whether or not "Ma'amar is a Kinyan.") (M. Kornfeld)