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Previous daf Yevamos 3
YEVAMOS 3 & 4 - dedicated by Dr. Eli Turkel (of Raanana) and family; may
they be blessed with much Nachas from their children and grandchildren.
*1*) [line 17] ESHES ACHIV SHE'LO HAYAH B'OLAMO D'LO MISHUM KURVAH HU
D'ASIRA - is Eshes Achiv she'Lo Hayah b'Olamo Asur because she is the
*Yavam's* direct relative ("Kerovei Atzmo")? [She is only related to him
2) [line 30] KOL HA'OLAH L'IBUM OLAH L'CHALITZAH
(a) Chazal teach (Yevamos 20a) that every woman whom the Torah requires to
have Yibum may also perform Chalitzah. Similarly, when a woman has no Zikah
for Yibum (i.e. she is not bound to one or more Yavam by the Torah in order
for him to perform Yibum with her), she is not required to perform Chalitzah
either. She may marry whomever she pleases, immediately. The reason for this
is that when there is no Zikah for Yibum, it is a sign that no connection at
all exists between the brother of the deceased and the deceased's wife.
(b) There are some exceptions to this rule:
1. When a doubt exists as to whether there is an obligation to do Yibum or
not, the Yavam performs Chalitzah and not Yibum, because of the doubt (RASHI
3a DH Havah Amina).
3) [line 33] MITZVAS CHALITZAH KODEMES L'MITZVAS YIBUM
2. When mid'Oraisa there is an obligation to perform Yibum but mid'Rabanan
Yibum cannot be performed (e.g. an Ervah mid'Rabanan), the Yavam performs
Chalitzah and not Yibum (Yevamos 20a).
3. When the Yavam is prohibited from performing Yibum because of an Isur
Aseh or Lo Sa'aseh mid'Oraisa, he still must perform Chalitzah. These Isurim
do not have the power to remove the Zikah for Yibum entirely (ibid., RASHI
9a DH v'Harei).
(a) According to the Torah law, when a married man dies childless, Yibum is
preferable to Chalitzah. Only if his brother does not want to perform Yibum
does the Torah command that the ceremony of Chalitzah be performed.
(b) However, since many men do not perform the Mitzvah of Yibum for the sake
of the Mitzvah alone, but rather because of beauty or honor or the like, the
Tana'im argue as to whether it is preferable to do Yibum with ulterior
motives or to perform Chalitzah. The Chachamim (Yevamos 39b) claim that
Yibum is still preferable. According to Aba Shaul, though, if a Yavam
performs Yibum for reasons other than for the sake of the Mitzvah, he is
dangerously close to violating the prohibition of Giluy Arayos (forbidden
relations) by taking his brother's wife when there is no Mitzvah of Yibum.
Therefore he maintains that it is preferable to perform Chalitzah.
4) [line 4] MACHZIR GERUSHASO
(a) It is forbidden for any Jew to remarry his wife after divorcing her, if
she married someone else in the interim (who subsequently divorced her or
died), as the Torah states, "Lo Yuchal Ba'alah ha'Rishon Asher Shilecha,
Lashuv l'Kachtah..." (Devarim 24:4). This Isur applies only if she was
married after the initial divorce; if she was raped, her ex-husband may
(b) The Tana'im argue as to whether the ex-husband is prohibited from
remarrying her if she became engaged (but not married) to someone else after
the initial divorce (Yevamos 11b).
*5*) [line 34] V'EFSHAR LINASEI LA'ACHIM - she is able to marry the Yavam's
brother [and she *actually is married to* the Yavam's brother]. (see TOSFOS
6) [line 44] ASI ASEH V'DACHI LO SA'ASEH
(a) When an Isur Lo Sa'aseh prohibits a certain action that prevents a
person from performing a Mitzvas Aseh, the Torah states that the Aseh is
able to "push aside" the Lo Sa'aseh. For example, when a person wants to
wear a four-cornered linen garment, the Isur of Sha'atnez prohibits
attaching woolen threads to it. However, the Mitzvah of Tzitzis requires
adding threads of Techeles (that are made of wool) to this garment. The
Torah commands that in this case the Mitzvas Aseh overrides the Lo Sa'aseh.
(b) The Tana'im argue as to the source of this Halachah. Some learn it from
the fact that the Torah specifically wrote the Mitzvah of Tzitzis and the
Isur of Sha'atnez as adjacent verses (Semuchin), an indication that the
Mitzvah of Tzitzis overrides the Isur of Sha'atnez (Yevamos 4a). Others
learn it from different sources (Yevamos 5a, Nazir 41a, 58a).
(c) Even though an Aseh normally overrides a Lo Sa'aseh, this is not the
rule in every case. The Gemara explains that in certain instances, the Aseh
does not have the power to override the Lo Sa'aseh. Some examples are:
1. A Lo Sa'aseh that is punishable by Kares is not pushed aside by an Aseh
(d) The Rishonim explored the possibility that an Aseh also does *not* push
aside a Lo Sa'aseh in other cases:
2. An action that is prohibited by both a Lo Sa'aseh and an Aseh, is not
pushed aside by a different Mitzvas Aseh (Chulin 141a).
3. Only in a case where the performance of the Aseh coincides with the
transgression of the Lo Sa'aseh did the Torah command that the Aseh takes
precedence. If performance of the Aseh is only accomplished after the
transgression of the Lo Sa'aseh, the Lo Sa'aseh is not pushed aside (Shabbos
133a). (There are those who write that if a person *begins* to perform a
Mitzvas Aseh while transgressing a Lo Sa'aseh, even though the Aseh is not
yet completed by the time the Lo Sa'aseh is transgressed, it pushes aside
the Lo Sa'aseh -- NIMUKEI YOSEF to Bava Metzi'a 33a).
4. If it is possible to perform the Aseh, in the case under discussion,
*without* transgressing the Lo Sa'aseh (by performing the Aseh in a
different way or at a different time), the Aseh does not push aside the Lo
Sa'aseh (Yevamos 20b -- see TOSFOS YESHANIM to Shabbos 25a). (The Rishonim
argue as to whether an Aseh pushes aside a Lo Sa'aseh when it is possible to
perform the Aseh without transgressing the Lo Sa'aseh, through the use of a
certain item that the person does not currently have the means to obtain
(RASHBA Yevamos 4b).
1. When one person performs a Mitzvas Aseh by doing a certain action in
which two people transgress the Lo Sa'aseh.
2. When the action is prohibited by two Mitzvos Lo Sa'aseh, and not only one
(TOSFOS Yevamos 3b DH Lo Sa'aseh).
3. When the action is prohibited in another instance by a Lo Sa'aseh and an
Aseh, even though in the case at hand there is only a Lo Sa'aseh that
prevents it (TOSFOS Kidushin 34a DH Ma'akeh).