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Yevamos, 27

1) APPLYING THE ISUR OF "BITUL MITZVAS YEVAMIM" TO CAUSE A "CHALITZAH PESULAH"

QUESTION: Shmuel rules that if Leah and her Tzarah were married to one man who died childless, and Rachel and her Tzarah were married to the man's brother and he also died childless, the third brother to whom these women fall for Yibum must do Chalitzah with Leah and Rachel, and he must also do a second Chalitzah with their Tzaros, because his Chalitzah with Leah and Rachel was a Chalitzah Pesulah. He may not do Yibum with Leah, the wife of the first brother who died, because she is "Achos Zekukaso" (according to the opinion that holds "Yesh Zikah"), and he may also not do Yibum with Rachel, the wife of the second brother (after doing Chalitzah with Leah) because she is "Achos Chalutzaso".

The Gemara says that according to the opinion that holds "Ein Zikah," the Tzarah of Leah does not need Chalitzah, because there was no Isur of "Achos Zekukaso." RASHI (DH Ela Tzarah d'Leah, and DH Yigmor) explains that the reason why Leah's Tzarah does not need Chalitzah is because if the brother wanted, he could have done Yibum with Leah (since there was no problem of "Achos Zekukaso" according to the opinion that holds "Ein Zikah") and therefore Leah's Chalitzah was not a Chalitzah Pesulah.

Why could he have done Yibum? It should still be prohibited for him to do Yibum because of the Isur to be Mevatel the Mitzvah of Yibum (since, by doing Yibum with Leah, he is Mevatel the Mitzvah of Yibum of Rachel). Consequently, the Chalitzah that he does with her should still be a Chalitzah Pesulah!

ANSWERS:

(a) TOSFOS (DH Ela Tzarah) explains that it is true that the brother cannot do Yibum because of the Isur to be Mevatel the Mitzvah of Yibum. Nevertheless, that Isur is not strong enough to make the Chalitzah into a Chalitzah Pesulah. The only Isurim that cause a Chalitzah to be termed "Chalitzah Pesulah," according to Tosfos, are "Achos Zekukaso" or "Achos Chalutzaso," because they weaken the bond of Zikah (Tosfos 26b, DH v'Chalitzah).

Tosfos might be following his own opinion elsewhere (27b, DH Aval Hacha), where he writes that if a woman was prohibited from doing Yibum because of the Isur to be Mevatel the Mitzvah of Yibum, it is not considered as though she was "Ne'esrah Sha'ah Achas" such that she remains Asur forever. Only if the Isur weakens the bond between a Yavam and Yevamah, will it cause a permanent Isur of "Eshes Ach" to take effect because of the rule of "Ne'esrah"; not the Isur of "Bitul Mitzvas Yevamim."

(b) RASHI, though, writes that it is *permitted*, in practice, to do Yibum with Leah. He does not say like Tosfos, that there is an Isur but that Isur does not make her Chalitzah into a Chalitzah Pesulah (see RASHBA, and footnote #62 of Hagaon Rav Aharon Yafen Ztz'l on the Ritva). Rashi does not say like Tosfos, because Rashi holds that any Isur will make a Chalitzah into a Chalitzah Pesulah as Tosfos (26b, DH v'Chalitzah) quotes from Rashi. (Similarly, Rashi (24a) holds that Bitul Mitzvas Yevamim will cause an Isur of "Ne'esrah.")

Why, though, is there no Isur of "Bitul Mitzvas Yevamim" in this case according to Rashi? From the words of RABEINU AVRAHAM MIN HA'HAR, it appears that Rashi understands that Shmuel holds like the opinion (on 18a) that there is no Isur of "Bitul Mitzvas Yevamim."

(c) Another approach to Rashi is presented by the TOSFOS HA'ROSH. He says that the Isur of "Bitul Mitzvas Yevamim" does not apply here. If the surviving brother does Yibum with Leah, he is not averting the Mitzvah of Yibum for the wives of Rachel's husband since he can still do the Mitzvah of Chalitzah with Rachel's Tzarah.

True, once he does Yibum with Leah, Rachel, will be Asur to him because of "Achos Ishto," so he obviously cannot do Yibum with her. Nevertheless, Rachel's Tzarah is not exempted from Chalitzah like a Tzaras Ervah. Why is that? The answer is, because Rachel became an Ervah *after* falling to Yibum. Her Tzarah only has a status of "Tzaras Ervah" if Rachel is an Ervah *at the time* that she falls to Yibum. (He nevertheless cannot do Yibum with the Tzarah of Rachel, because she is no different than "Tzaras Kerovas Chalutzaso," as she is "Tzaras Kerovas *Yevimto*.")

The Tosfos ha'Rosh questions this explanation, though. There should still be a problem of "Bitul Mitzvas Yevamim," because perhaps the Tzarah of Rachel will die, thereby leading to a forfeiture of the Mitzvah of Yibum with the wives of the second deceased brother (since he cannot do Yibum with Rachel because he already did Yibum with her sister, Leah, and Rachel's Tzarah is dead). We find that the Chachamim prohibited doing Yibum even in such a case, where there is only a possibility of being Mevatel a Mitzvah of Yibum (in case one person dies).

The answer to this question might be that Shmuel is referring to the case of the Mishnah in which there are *four* brothers, and thus there are *two* brothers remaining who can do Yibum. When doing Yibum with Leah, the brother will not be Mevatel the Mitzvah of Yibum with Rachel, because even if Rachel's Tzarah dies, the other brother can do Yibum with Rachel. We have learned (26b) that when it would take the death of two people to cause a Bitul of the Mitzvah of Yibum, we are not concerned and there is no Isur. (Alternatively, when considering whether the Isur of possibly being Mevatel the Mitzvah of Yibum applies, we are only concerned for the death of a brother, and not for the death of a Yevamah.) (M. Kornfeld)

27b

QUESTION: Rav and Rebbi Yochanan argue whether a Yevamah remains Asur when, at the time that she fell to Yibum, she was Asur, and then she became Mutar. Rav says that even if a woman was first Asur and then became Mutar, she is allowed to do Yibum. Rebbi Yochanan argues and says that she is allowed to do Yibum only if she was originally Mutar at the time that she fell to Yibum. Then, if she became Asur, and then became Mutar again, she is Mutar.

Rebbi Yosi b'Rebbi Chanina challenges Rebbi Yochanan's view from the Mishnah (26a). The Mishnah says that in a case of four brothers, two of which were married to two sisters and then died childless, the remaining brothers must do Chalitzah with the two wives of their brothers. According to Rebbi Yochanan, the Mishnah should have said that one brother should do Chalitzah with the second sister who fell to Yibum, and the other brother may then do Yibum with the first sister, because in such a case, at the moment that the first sister fell to Yibum, she was Mutar, and then when her sister fell to Yibum, she became Asur, and when one brother did Chalitzah with the second sister, the first sister became Mutar again!

Why does the Gemara not ask the same question on the opinion of Rav? Rav says that even when she was Asur to begin with and then became Mutar, she remains Mutar, so certainly the Mishnah is problematic according to Rav!

ANSWERS:

(a) RASHI (DH Mesah Rishonah) explains that the Gemara's question also applies to the opinion of Rav as well. Perhaps the Gemara did not ask its question on Rav because of the principle "Rav Tana Hu u'Palig," Rav is considered to have the status of a Tana and may argue with a Mishnah (as the ME'IRI writes here).

(b) TOSFOS (DH Eisivei) says that Rav holds that a Chalitzah Pesulah must be done by all of the brothers. Accordingly, the first sister who fell to Yibum must do Chalitzah with both remaining brothers, because she becomes an "Achos Zekukaso" (and thus cannot do Yibum with any of the brothers) once the other sister falls to Yibum. When both brothers do Chalitzah with the first sister, they no longer may do Yibum with the second sister, because she then becomes Asur to them because of "Achos Chalutzaso." Hence, Rav would agree with the Halachah of the Mishnah.

In contrast, Rebbi Yochanan holds that Chalitzah Pesulah does *not* need to be done by all of the brothers. Accordingly, since it is enough for one brother to do such a Chalitzah, the second brother should be able to do Yibum with the other sister, since she is not "Achos Chalutzaso" (since it was the other brother, and not this brother, who did Chalitzah with her sister). That is why the question is only on the opinion of Rebbi Yochanan.

(c) According to RABEINU CHANANEL cited by Tosfos, the reason that Rav does not hold of the Isur of "Ne'esrah" is because he holds "Ein Zikah," and thus the first sister did not become Asur when the second sister fell to Yibum. ("Asur l'Vatel Mitzvas Yevamim" does not cause a Yevamah to become Asur forever; see previous Insight.) Thus, the Mishnah will not present a problem to Rav, because Rav will assert that the Mishnah is following the Tana'im who hold "Yesh Zikah," and that is why it holds "Ne'esrah" (the Isur of "Achos Zekukaso" remains).

According to Rebbi Yochanan, though, who holds "Yesh Zikah" (see Daf 28a), the Mishnah poses a problem, since Rebbi Yochanan asserts that even if Yesh Zikah, when a woman was first Mutar and then became Asur (because of "Achos Zekukaso") and then became Mutar again, she is Mutar and the Isur does not endure.

(d) The other Rishonim explain that the Gemara on Daf 28a offers the solution to this question. The Gemara there explains that those who hold Ein Zikah, and Asur l'Vatel Mitzvas Yevamim, will prohibit performing Chalitzah with the first Yevamah and Yibum with the second lest one reverse the order, thereby averting the Mitzvah of Yibum. The Gemara proves that Rebbi Yochanan is not of that opinion, but Rav may very well be of the opinion that Asur l'Vatel Mitzvas Yevamim.