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Yevamos, 32

1) THE AFFECT OF "EIN ISUR CHAL AL ISUR" ON THE STATUS OF A TZARAH

QUESTION: Rebbi Shimon holds "Ein Isur Chal Al Isur" -- a new Isur cannot take effect when there is a pre-existing Isur. Therefore, when two brothers were married to two sisters and one brother died, if the surviving brother does Yibum with his brother's wife (which is prohibited because she is an Ervah of "Achos Ishto" to the surviving brother), he is Chayav only for transgressing *one* Isur: If the first brother had been married first, then the Isur of "Eshes Ach" took effect, and when the second brother married the sister of his brother's wife, the Isur of "Achos Ishto" could not take effect. If, on the other hand, the second brother married first, so that his wife's sister became Asur to him as "Achos Ishto," then when his brother gets married to that sister, the Isur of "Eshes Ach" cannot take effect.

We learned earlier (13b) a similar statement expressed by Beis Shamai, who said that one is Chayav only for the Isur that took effect first. For that reason, Beis Shamai concluded that the Tzarah of an Ervah is *permitted* to do Yibum, because either the other wife is only an "Eshes Ach" (if the deceased brother had married her before she became an Ervah to the second brother), and in that case the Tzarah is not the Tzarah of an Ervah, but rather she is the Tzarah only of an "Eshes Ach," and thus the Tzarah may do Yibum, or she is the Tzarah *only* of an "Achos Ishah," in which case that "Achos Ishah" does not fall to Yibum at all (since only a woman who is an "Eshes Ach" falls to Yibum), and thus she does not prohibit the Tzarah from falling to Yibum.

Does this mean that Rebbi Shimon, and every other Tana who holds "Ein Isur Chal Al Isur," agrees with Beis Shamai that the Tzarah of an Ervah can peform Yibum? (TOSFOS YESHANIM 13b)

ANSWER: Although Beis Shamai connects the two issues, saying that the Heter for a Tzaras Ervah to do Yibum depends on "Ein Isur Chal Al Isur," the other Tana'im who hold "Ein Isur Chal Al Isur" maintain that the two issues are not related. A Tzaras Ervah is still prohibited from doing Yibum, even if "Ein Isur Chal Al Isur."

The reason for this is because the Gemara says that even though only one Isur actually takes effect, the other Isur is "Mitla Tali v'Kai" -- it is hanging there and waiting for an opportunity to take effect. As soon as the first Isur is removed, the second Isur will take effect. Rebbi Shimon, and those who hold like Beis Hillel that a Tzarah of an Ervah is prohibited from doing Yibum, say that the fact that the Isur is suspended and waiting to take effect is enough to make the woman considered both an "Eshes Ach" and an "Achos Ishah" as far as Yibum is concerned. In a case where the Isur of "Eshes Ach" took effect first, the Yevamah is considered to be Asur as an Ervah because of the Isur of "Achos Ishah" that is suspended. In a case where the Isur of "Achos Ishah" took effect first, she still falls to Yibum because she is considered an "Eshes Ach" due to the Isur of "Eshes Ach" that is suspended and waiting to take effect. That potential Isur is enough to make her fall to Yibum.

32b