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Yevamos, 29

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)

29b

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!

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)

ANSWERS:

(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 Yevamim.")

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. (M. Kornfeld)

(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 Shamai)

ANSWERS:

(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 that case.

(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)