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Yevamos, 11

1) THE OPINION OF REISH LAKISH IN A CASE OF REBBI SHIMON

QUESTION: The Gemara (10b) challenges the view of Reish Lakish from a Beraisa. Reish Lakish maintains that when a man ("Reuven") dies and his wives fall to Yibum and one of his surviving brothers ("Shimon") does Chalitzah with one of the Tzaros, all of the brothers are prohibited to all of the Tzaros with an Isur Kares (the Isur of "Eshes Ach"), with the exception of the brother and the woman who did Chalitzah, who are prohibited to each other only with a normal Lav (the Isur of "Lo Yivneh"). The Beraisa, however, says that if Shimon did Chalitzah, and then he married the woman with whom he did Chalitzah, and then he dies, the other brothers must do Chalitzah with that woman. According to Reish Lakish, she should be completely exempt, because she is Asur to the brothers with Kares!

Rav Ashi (11a) answers this question on Reish Lakish. He says that the Beraisa is following the opinion of Rebbi Shimon, and is referring to the following case: Reuven dies, and Shimon does Chalitzah with Reuven's wife. Then, new brothers are born. Since those new brothers were not around when Shimon did Chalitzah, no Isur took effect upon them when Shimon did Chalitzah. Thus, after Shimon marries the woman and dies, they are not prohibited to his wife and they must do Chalitzah.

RASHI (DH u'Metaretz Lah and DH ha'Yiludim) seems to say that, according to Rebbi Shimon, if a new brother ("Levi") is born before Shimon marries the woman, but after he does Chalitzah, then Levi is considered a case of "Eshes Achiv she'Lo Hayah b'Olamo" to Reuven, and he is Asur to the woman. Only if Levi is born *after* Shimon marries her is it permitted for Levi to do Yibum with her when Shimon dies, because in that situation Levi is not a case of "Eshes Achiv she'Lo Hayah b'Olamo" (since he was in the world while Shimon was married). The RASHBA and ME'IRI state this clearly.

We know that Rebbi Shimon holds that when a new brother ("Levi") is born after Shimon performs Yibum, she is no longer considered "Eshes Achiv she'Lo Hayah b'Olamo" and Levi may do Yibum with her when Shimon dies. If so, why does Rebbi Shimon not say the same thing when Levi was born after Shimon did Chalitzah with her (and then married her)? Chalitzah accomplishes the same thing as Yibum -- it ends the Zikah from the wife's marriage to the first husband! How does Rashi know that even if Levi is born after the Zikah has ended (through Chalitzah) but before the marriage of Shimon and the Chalutzah, that Rebbi Shimon still says that she is considered "Eshes Achiv she'Lo Hayah b'Olamo?" What is Rashi's source for this, and what is Rashi's logic to say that when Shimon marries his Chalutzah, that changes the status of the brother born after the marriage and makes it different than if Levi had been born after Shimon did *Yibum* with her? Why should the marriage make any difference if it has nothing to do with Yibum?

ANSWER: According to Reish Lakish, who holds that the other brothers are Asur to the Tzaros (the Yevamah, Chalutzah, and all of the Tzaros) with an Isur Kares, how is it possible to have a case of a "Nefilah Sheniyah" (when Reuven died and one of the surviving brothers, Shimon, did Yibum with one of his wives, and then *Shimon* died, in which case the surviving brothers have an obligation to do Yibum with that woman)? They should all be Asur to Shimon's wife (the Yevamah) because she is their "Eshes Ach" (having been married to Reuven)!

The answer can be found in RASHI later (20a, Rashi DH Achoso, see also Tosfos DH Hai) who discusses Rebbi Shimon's opinion that when the "Eshes Achiv she'Lo Hayah b'Olamo" was born after Shimon did Yibum, he is permitted to do Yibum with Shimon's wife when Shimon dies. He explains that Rebbi Shimon's logic is that there is no question that Shimon himself was permitted to the woman, because he took her through Yibum. Since Shimon's wife falls to Levi through the medium of Shimon -- by virtue of her having been Shimon's wife -- therefore Levi has the same allowance to marry her as Shimon had. That is, Levi inherits Shimon's Heter to marry her, so to speak.

This explains why the woman, after the second Nefilah (when Shimon dies after doing Yibum with Reuven's wife), is Mutar to the brothers according to Reish Lakish. Even though they are Asur to the Yevamah with an Isur Kares, now that they are receiving the Yevamah through Shimon, they also receive Shimon's Heter to marry her.

If so, why does Reish Lakish say that if Shimon did Chalitzah and then married her, all the other brothers are Asur to her with Kares and cannot do Yibum if Shimon dies? He should say that when Shimon dies, the brothers should inherit Shimon's Heter to marry her! Since he was permitted to her because of his Chalitzah which removed the Isur Kares (and replaced it with an Isur Lav), the other brothers should also have the same Heter from the Isur Kares and they should thus have a Chiyuv of Yibum! What is the difference between a case where Shimon did Yibum and then died, or did Chalitzah, married her, and then died? Why are the other brothers Asur to her with an Isur Kares, while the new brother, Levi, who is born after the Chalitzah, is Mutar to her (for he *does* inherit Shimon's Heter to the woman)?

Likewise, why is it that in a case of "Eshes Achiv she'Lo Hayah b'Olamo" -- that is, when Levi was born after Reuven died and *before* Shimon did Yibum - - it is prohibited for Levi to do Yibum with the woman because of the Isur of "Eshes Achiv she'Lo Hayah b'Olamo?" He should inherit Shimon's Heter to the Yevamah, when Shimon dies and his wife falls to Yibum!

It must be that at the time that Shimon did Chalitzah, the brothers were Asur to her with an Isur Kares for one moment before Shimon married her (because when he does Chalitzah and is not yet married to her, there is no potential for Yibum). As long as there was one moment during which they were Asur to her and there was no Heter to do Yibum, then they remain Asur to her forever -- they can never get a Heter to do Yibum with her by virtue of Shimon's Heter to her. The same applies to the "Eshes Achiv she'Lo Hayah b'Olamo." Since Levi was Asur to Shimon's wife *before* Shimon performed Yibum, he remains Asur to her under all circumstances.

The same logic will dictate that, according to Rebbi Shimon, if Levi is born after Shimon does Chalitzah but before Shimon marries, Levi will be Asur to her for one moment (Sha'ah Achas), just as if he was born before the Yibum during the Zikah, since after Shimon's Chalitzah there is no potential for Levi to perform Yibum, and thus he will never be permitted to the woman. When our Gemara says that a newborn brother *is* Mutar to the Chalutzah, it must be that he was born *after* the brother remarried the Chalutzah. (M. Kornfeld, based on points raised by KOVETZ HE'OROS 2:2)

The logic behind saying that he is Mutar to the Yevamah if he is born after Shimon has married the Chalutzah is that from the moment that he marries her, the potential for Yibum exists (if he dies without children), and therefore if Levi was born after their marriage it cannot be said that he was Asur to Levi's wife for one moment. Before Shimon marries her there is no potential Yibum and therefore the newborn brother is certainly Asur to her, as "Eshes Achiv she'Lo Hayah b'Olamo," and he remains Asur to her forever. (ME'IRI)

11b

QUESTIONS: The Gemara discusses whether a woman, in a case of Machzir Gerushaso, or her Tzarah, are permitted to perform Yibum or Chalitzah. The Gemara attempts to bring a proof from the Mishnah later (44a) which states that if a man was married to two women -- one "Pesulah" and one "Kesherah," his brother should do Yibum only with the Kesherah, while the Pesulah may only do Chalitzah. The Gemara asserts that when the Mishnah refers to a woman who is "Pesulah," it means the divorced woman (Gerushah) in a case of Machzir Gerushaso. The Gerushah is "Pesulah" because her husband transgresses an Isur Lav by remarrying and staying married to her. The Gerushah is not prohibited to anyone else, though, so if her husband dies, she falls to Yibum to his brother. The Mishnah is teaching that the brother should not do Yibum, but instead do Chalitzah with her. The deceased brother's second wife (the Tzarah of the Gerushah) is "Kesherah," and the brother may do Yibum with her.

RASHI explains that the Tzarah may do Yibum even though the Torah uses the term "Tum'ah" with regard to Machzir Gerushaso, which seems to imply that the woman in a case of Machzir Gerushaso has the status of an Ervah, nevertheless, the "Tum'ah" refers only to the woman herself (the Gerushah) and not to her Tzarah.

Rashi is explaining that the Gemara is answering the doubt according to the Lishna Basra, the second version of the question concerning the Tzarah of the Gerushah. According to the Lishna Basra, the doubt of the Gemara is in the opinion of Rebbi Yosi ben Kifar. That is why Rashi refers to the verse's use of the term "Tum'ah;" it is only Rebbi Yosi ben Kifar who applies that term to Machzir Gerushaso.

Rashi's explanation is problematic. The Mishnah quoted by the Gemara says that the Pesulah -- that is, the Gerushah in the case of Machzir Gerushaso -- may only do Chalitzah. However, if that Mishnah is expressing the view of Rebbi Yosi ben Kifar, then the Gerushah herself should not need even Chalitzah, because the Torah uses the term "Tum'ah" with regard to Machzir Gerushaso, and thus she is certainly exempt from both Yibum and Chalitzah, just like a woman who is an Ervah, and a Sotah! Why does Rashi explain that the Gemara's answer is going according to the Lishna Basra and is explaining the opinion of Rebbi Yosi ben Kifar?

Second, the Lishna Basra assumes that the Rabanan maintain that the Gerushah may only do Chalitzah, and that the Tzarah may do either Chalitzah or Yibum. Accordingly, the Mishnah that says that the "Pesulah" (the Gerushah) may do only Chalitzah, and the "Kesherah" (the Tzarah) may do either Chalitzah or Yibum, could be expressing the view of the *Rabanan*. How, then, can the Gemara prove from that Mishnah what *Rebbi Yosi ben Kifar* holds, if that Mishnah could well be the opinion of the Rabanan? Rashi should have said that the Gemara is answering the doubt of the Lishna Kama, the first version of the question concerning the Tzarah of the Gerushah! According to the Lishna Kama, Rebbi Yosi ben Kifar holds that both the Gerushah herself and her Tzarah are exempt from Chalitzah and Yibum, and thus the Mishnah (44a) cannot be following his opinion. The Rabanan, though, hold that the Gerushah does do Chalitzah, and the question is whether the Tzarah does only Chalitzah or may also do Yibum. This Mishnah answers the question and teaches us that the Rabanan hold that the Tzarah may also do Yibum. (According to the Lishna Kama, the Mishnah cannot be expressing the view of Rebbi Yosi ben Kifar, because he holds that *both* the Gerushah and her Tzarah are exempt, while the Mishnah says that they are both at least required to do Chalitzah)! Why did Rashi not explain the Gemara this way? (Indeed, this is the way that TOSFOS (DH Tzarasah, DH Amar Lei) explains the Sugya.)

ANSWERS: Rashi understood the Gemara in the manner explained by the RAMBAN and other Rishonim (11a). They explain that when Rebbi Yosi ben Kifar interprets the term "Tum'ah" to be referring to Machzir Gerushaso, thereby comparing Machzir Gerushaso to a case of Ervah, it does not necessarily exempt the Gerushah from both Chalitzah and Yibum. Even though when the term "Tum'ah" appears with regard to a Sotah it exempts her from both Chalitzah and Yibum, the term "Tum'ah" in the Parashah of Machzir Gerushaso exempts her only from Yibum but not from Chalitzah (see Chart #3, footnote 5). Accordingly, even Rebbi Yosi ben Kifar does not exempt the Gerushah from Chalitzah. That is why the Gemara says that this Mishnah (44a), which says that the the "Pesulah" (the Gerushah) does Chalitzah, could be expressing the view of Rebbi Yosi ben Kifar. (MAHARSHA)

This point, that according to Rashi that the use of the term "Tum'ah" does not exempt the Machzir Gerushaso from Yibum, but only from Chalitzah, is evident in the words of Rashi himself (the first DH Tzaraso Mahu), where Rashi adds "[What is the status of the Tzarah] *to do Yibum*." This implies that there was no question about Chalitzah; she definitely does Chalitzah even though the verse uses the term "Tum'ah."

Regarding the second question that we asked -- how does Rashi know that the Mishnah (44a) is following Rebbi Yosi ben Kifar's opinion, when it could well be following the opinion of the Rabanan (who say that the Gerushah may do Chalitzah, but not Yibum), the RASHBA and the RITVA write that the Mishnah later cannot be expressing the opinion of the Rabanan, because then the Mishanh would not be teaching any Chidush. We already know that, according to the Rabanan, the Gerushah herself is Pesulah and may do only Chalitzah, and the Tzarah is Kesherah and may do either Chalitzah or Yibum. According to Rebbi Yosi ben Kifar, however, who says that we apply the term "Tum'ah" to the Gerushah, it is a Chidush to say that the term "Tum'ah" does not also apply to the Tzarah like it does to the Gerushah. That is what the Mishnah is teaching us, and thus it must be expressing the opinion of Rebbi Yosi ben Kifar.

Rashi does not seem to be taking this approach, though, since these Rishonim maintain that the Gemara's proof is viable according to both Leshonos of Rebbi Yehudah's question. Rashi, though, seems to be explaining that it is *only* proving the Halachah according to the second version of the question.

It could be that Rashi learned that in both versions of the Gemara's question, the Rabanan hold that the status of the Tzarah and the status of the Gerushah *are identical*. If we say "Ein Mikra Yotzei Midei Peshuto" and thus the term "Tum'ah" must also be referring to Machzir Gerushaso, then both the Gerushah and her Tzarah may do only Chalitzah and not Yibum (because "Tum'ah" applies to the Tzarah just like it applies to the Gerushah herself). Therefore, this Mishnah that *differentiates* between a Pesulah (i.e. Gerushah) and Kesherah (i.e. the Tzarah) cannot be following the view of the Rabanan, but it must be following the opinion of Rebbi Yosi ben Kifar, and it answers the Gemara's question according to the Lishna Basra. (M. Kornfeld)