THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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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) THE SOURCE FOR THE PROHIBITION OF DOING "YIBUM" WITH THE "TZAROS" OF A
QUESTION: The Beraisa teaches the source for the prohibition against doing
Yibum with the Tzaros of one's Achos Ishto (wife's sister). The Beraisa says
that this prohibition is derived from the extra phrase in the verse, "...Lo
Sikach *li'Tzror*" -- "You may not take a woman in addition to her sister
*to make them co-wives (Tzaros) to each other*" (Vayikra 18:18), which
teaches that one may not marry the Tzaros of a woman who is an Ervah to him,
even in a situation of Yibum (as derived from the Gezeirah Shavah of
"Aleha"). The Beraisa asks from where do we know that the Tzaros of a Tzarah
are also prohibited? The Beraisa answers that the verse says "Litzror" when
it could have said "Latzur" (with one Reish), and thus it includes the
Tzaros of a Tzarah.
2) "YIBUM" FOR A NIDAH
Why is it necessary to derive the prohibition of Tzaros of a Tzarah from a
verse? Once the Tzarah herself cannot do Yibum (because she is the Tzarah of
an Ervah), she remains Asur to her husband's brothers because of the Isur of
"Eshes Ach" (the wife of one's brother). Therefore, she is exactly the same
as any other Ervah, and her Tzarah should be no different than a normal
Tzarah of an Ervah!
Even though the Isur Ervah here is that of "Eshes Ach" which is usually
suspended in a situation of Yibum, the Mishnah tells us in another case --
"Eshes Achiv she'Lo Hayah b'Olamo" -- that the Isur of "Eshes Ach" is able
to prohibit her to the brother with whom she would have otherwise done
Yibum, and the Gemara does not find it necessary to ask for a source for
this. In that case, a brother who was born *after* his older brother died
childless may *not* do Yibum, since they were not in the world at the same
time, and thus his older brother's wife remains Asur to him as an "Eshes
Ach," and her Tzaros are also Asur to him because they are Tzaros Ervah.
Similarly, the Gemara should not need a source for the Tzaros of a Tzarah.
In fact, RASHI (DH v'Eshes Achiv) compares the exemption from Yibum of
Tzaros of a Tzarah to the exemption of Tzaras "Eshes Achiv she'Lo Hayah
b'Olamo." Why, then, does the Gemara need a verse to teach us this Isur?
Furthermore, later (8b), when Rashi discusses the opinion of Rebbi, who
finds another source for the exemption of Tzarah from Yibum but does not
give a source for the exemption of Tzaros of a Tzarah, Rashi (DH Im Ken)
says that Rebbi does not need a verse to teach that Tzaros of a Tzarah do
not do Yibum, "because she is the Tzarah of an 'Eshes Ach'!" Why, then, is
it necessary here to prove from a verse that Tzaros of a Tzarah are exempt
from Yibum? (REBBI AKIVA EIGER)
(a) The Gemara itself actually cites an opinion that concurs with Rebbi
Akiva Eiger's question, and says that no verse is needed to teach that
Tzaros of a Tzarah may not do Yibum. The Gemara (13a) asks, "How do we know
[that Tzaros of a Tzarah do not do Yibum]? Rav Yehudah says that we learn it
from the word 'Litzror'. Rav Ashi says that it is logical [and no verse is
needed]." Rav Ashi's opinion is exactly like Rebbi Akiva Eiger suggests!
Why, though, does the Gemara there ask for the source of the Isur of Tzaros
of a Tzarah, if the Beraisa here (3b) clearly states that it is learned from
a verse? In addition, how could Rav Ashi argue with the Beraisa and give a
The VILNA GA'ON in his Hagahos here points out that the Girsa of many
Rishonim did not include this line about Tzaros of a Tzarah in the Beraisa.
According to that Girsa, there is no question on the Beraisa, nor on Rav
Ashi, since neither one says that a verse is needed to teach the Isur of
Tzaros of a Tzarah. Rather, Rebbi Akiva Eiger's question is on Rav Yehudah:
why does he argue with Rav Ashi and try to find a source in a verse?
The RITVA (13a) says that Rav Yehudah agrees with Rav Ashi that no verse is
needed to teach this Isur. He only mentions the verse as a scriptural
support for the logic that prohibits Tzaros of a Tzarah (like an Asmachta).
Rav Ashi explains what Rav Yehudah's real logic is, and they are not arguing
at all. Accordingly, there is no question on Rav Yehudah, nor on Rav Ashi.
However, this is clearly not the approach of many other Rishonim. Rashi here
(3b, DH Litzror, and 2b, DH Kach Tzaras Tzarasah) clearly says that
according to Rav Yehudah, the source is from a verse and is *not* something
we would know from logic.
In addition, TOSFOS (2a, DH Ad Sof) explains that the Girsa in the Beraisa
should include the line about Tzaros of a Tzarah, and that both Rav Yehudah
and Rav Ashi agree that the source for the Isur of Tzaros of a Tzarah is the
verse of "Litzror." The argument later (13a) involves whether or not the
Isur of the secondary Tzaros applies ad infinitum ("Ad Sof ha'Olam"); the
Isur of those additional Tzaros is derived from logic or from a verse.
According to Tosfos, Rebbi Akiva Eiger's question can be asked according to
both Rav Yehudah and Rav Ashi. Why do the Amora'im seem to agree that it is
necessary to have a verse to teach the Isur of Tzaros of a Tzarah?
(b) The verse does not say that the Tzarah of the Ervah does not fall to
Yibum at all and has no "Zikas Yibum." It only says that the brother cannot
do Yibum with the Tzarah, and she is Asur to him with a punishment of Kares
(8a). We know that whenever there is an Isur Kares standing in the way of
doing Yibum, it is also prohibited to do Chalitzah, as we find in the Gemara
later (20a) and in Rashi (2b, DH v'Eshes Achiv). We know, therefore, that
the brother may not do Yibum nor Chalitzah with the Tzaras Ervah.
If he is the only brother surviving, then there cannot be any Zikah of
Yibum, because if there is, then she will never be able to remarry, since
she is Zekukah to Yibum but cannot do Yibum nor Chalitzah. Rather, since the
brother cannot do either act, there is no Zikah and the woman may marry
anyone she wants.
However, when there are other brothers, perhaps the Zikah takes effect on
the entire household as a whole, and once she is Zekukah to some of the
brothers, she is also Zekukah to all of them. One brother -- the one to
which this woman is an Ervah or a Tzarah of an Ervah -- cannot remove the
Zikah by doing Yibum or Chalitzah. Any of the other brothers, though, can do
Yibum or Chalitzah and thereby remove the Zikah from the entire household,
and also remove the Isur of "Eshes Ach" for all of the brothers. And just
like he removes the Zikah from the other brothers, he also removes the Zikah
from the brother who could not do Yibum. Since the Tzaras Ervah was Zekukah
to that brother, she will not become Asur with the Isur of "Eshes Ach." She
will be like any other woman who is able to fall to Yibum more than once --
if the first brother who married her died childless, and then the second
brother who married her through Yibum died childless, and so on. (In other
words, this woman is considered to be an "Eshes Ach b'Makom Mitzvah," which
does *not* stand in the way of doing Yibum.)
This is why we need a verse to teach us that the Tzaros of a Tzarah are
prohibited, and there is no Zikah whatsoever (for either the Ervah or for
the Tzaros) to the brother who is related to them as an Ervah.
This differs from the case of "Eshes Achiv she'Lo Hayah b'Olamo." In that
case, we do not need a verse to show that there is no Zikah to the brother
who is born after the first brother died and his wife fell to Yibum. We do
not need a verse because the verses regarding Yibum in the Torah refer only
to when the brothers were alive together, and not to when a brother was born
after the first brother died. It is obvious that the younger brother is not
included in the Zikah.
This is not the case, though, with regard to the Tzarah of an Ervah. The
verses do not exclude the Tzarah in the discussion of Yibum. Instead, a
different verse, not related to Yibum, teaches that she does not do Yibum.
Since it is learned from a different source, there is room to doubt whether
the verse of "Litzror" is teaching us that she is not in the Parashah of
Yibum in the first place (and she is excluded from Zikah), or whether it is
telling us that she is in the Parashah of Yibum, but the Torah says that she
is not able to do Yibum or Chalitzah (but she has Zikah).
The same can be said according to Rebbi (8b). According to Rebbi, the verse
that teaches that a Tzarah of an Ervah does not do Yibum is in the Parashah
of Yibum itself. Since the verse excludes her from the Mitzvah of Yibum,
there is obviously no reason to assume that there is any Zikah for the
Tzarah of an Ervah, and that is why it is not necessary to bring a verse to
exempt the Tzaros of a Tzarah according to Rebbi.
QUESTION: The Beraisa derives from the verse that teaches the Azharah of
marrying one's "Achos Ishto" (wife's sister) that it is also prohibited to
do Yibum with a Tzarah of an Ervah, and doing Yibum with her is punishable
with Kares. Just like "Achos Ishah" may not do Yibum and carries the
punishment of Kares, so, too, her Tzaros may not do Yibum.
The Gemara says that we learn the Azharah (the prohibition) of doing Yibum
with an Ervah or with the Tzarah of an Ervah from a Binyan Av, from the
Azharah that is written with regard to "Achos Ishto" and her Tzarah, which
makes it punishable with Malkus. We learn that it is punishable with Kares
from the Binyan Av as well. How can we use a Binyan Av to give Malkus and
Kares? We have a principle that states "Ein Onshin Min ha'Din" -- an Azharah
(and Malkus) or punishment of Kares (TOSFOS Chulin 115b DH Mah) cannot be
administered on the basis of a an exegetical derivation of a "Kal v'Chomer"
(Makos 5b) or "Binyan Av" (see RAN Nedarim 4b DH Teisi); how can we punish
the Ervos and Tzaros based on a Binyan Av? (MELO HA'RO'IM)
ANSWER: TOSFOS (DH me'Achos Ishah) points out that the Gemara cannot be
relying on a Binyan Av when it says that the Azharah of the other Arayos and
Tzaros is derived from the Azharah of "Achos Ishto," because there are
refutations (Pirchos) on some of them which prevent learning them from the
Binyan Av. Rather, the Beraisa means that there is a *Hekesh* connecting all
of the Arayos, like the Gemara later (8a) clearly concludes, and thus they
can all be learned from "Achos Ishto." A Hekesh is not subject to the rule
of "Ein Onshin Min ha'Din." This explains why we can derive a punishment
through this Limud. It is not a Binyan Av, but a Hekesh, and a Hekesh may be
used to teach a punishment.
However, the Melo ha'Ro'im challenges this answer: if there is a Hekesh
between all of the Arayos, then why is the Isur of Tzaras Ervah limited to
the fifteen Arayos and not to the other six, more severe, Arayos? It is
clear from the Gemara later (54b) that the Hekesh applies to *all* of the
Arayos, and if so, whatever Halachos exist by the fifteen Arayos should also
exist by the six severe Arayos! Moreover, why is there Yibum for a Nidah? A
Nidah is an Ervah (since being with a Nidah is Asur b'Kares) and should be
included in the Hekesh (as the Gemara itself says later that a Nidah is
connected to the other Arayos through the Hekesh with regard to other laws),
and "Ein Meshivin Al ha'Hekesh" -- the Hekesh applies even when there are
reasons to say that a Nidah is more lenient than the other Arayos.
For example, TOSFOS on 2a, DH v'Achos, says that Nidah is more lenient than
the Arayos of the Mishnah because her Isur is not specific to the brother
(the Yavam), but it is a general Isur that applies to every man in the
world; in this sense she cannot be called an Ervah (see also TOSFOS HA'ROSH
there). RABEINU TAM in Sefer ha'Yashar says that the Isur of Nidah is not
described as an Ervah since her nature is to become Mutar and then Asur and
then Mutar again, and so on. This explains why the Gemara does not learn
Nidah from a Binyan Av from Achos Isha, which *is* an Ervah. But if there is
a Hekesh between Nidah and the Arayos, we should not exclude Nidah from the
Hekesh because of these "Pirchas." Why, then, does a woman who was a Nidah
at the time that her husband died do Yibum (when she becomes Tahor)?
The question from the six severe Arayos can be answered by saying that the
Gemara understands from the verse that in a situation of Yibum, a Tzarah of
an Ervah is Asur because the Isur of "Eshes Ach" remains and prohibits her
to her brother-in-law. This is learned from the fact that the Torah states
the Isur of "Eshes Ach" specifically in a situation of Yibum. Therefore, in
the case of the six severe Arayos who can *never* be married to one's
brother (such that if he died they would fall to Yibum), there is nothing to
which to apply the Hekesh! They are no different than the other Arayos; just
like the Tzaros of the fifteen Arayos are not prohibited when there is no
Yibum (for example, when Shimon's wife's sister was married to an unrelated
man, Shimon is permitted to marry that man's other wife). The same is true
for these six severe Arayos; their Tzaros are not prohibited in a normal
situation, where there is no Yibum.
How will we answer the question from the case of a Nidah, though? It appears
that the principle of "Ein Meshivin Al ha'Hekesh" means that we cannot ask a
question (Pircha) on the Hekesh just because Nidah (or any item learned
through a Hekesh) is more lenient or more severe than the other items
included in the Hekesh (even though such a Pircha does remove the item from
a Binyan Av and from a Kal v'Chomer). However, if there is more than just a
Kula or Chumra, but there is a logical argument to propose why one of the
objects should not be included in the Hekesh, then that logical argument
*is* able to remove the item from the Hekesh and prevent the Halachah from
being taught to that object via the Hekesh. In the case of a Nidah, there is
a logical argument that challenges the comparison to the other Arayos, and
thus she is removed from the Hekesh. It is not just a Kula or Chumra that
exists by Nidah and not by the others, but there is an essential difference
between Nidah and the other Arayos -- which is the reason that Kidushin may
be made with a Nidah but not with the Arayos. Therefore Nidah is excluded
from the Hekesh.