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 46-60 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) WHY A MAN CANNOT DO YIBUM WHILE ASLEEP
QUESTION: The Gemara says that if a Yavam has relations with his Yevamah
while he is sleeping, he is not Koneh the Yevamah and has not fulfilled the
Mitzvah. RASHI (DH Yashen Lo Kanah) explains that "a sleeping person is not a
Bar Da'as (he has no Da'as) and his Kinyan is not a valid Kinyan."
2) DERIVING THAT "BI'AH SHE'LO K'DARKAH" IS AN EFFECTIVE FORM OF YIBUM
Why is this a reason for a sleeping person not to be Koneh the Yevamah? We
know that there are other forms of Bi'ah where the Yavam does not have in
mind to be Koneh her, and yet the Yibum is still valid. For example, when a
man does a Bi'ah of Shogeg, or a Bi'ah of Ones, he does not have in mind to
be Koneh her, and yet is still Koneh her!
Second, a Katan does not have Da'as to be Koneh her, and yet when he does
Yibum he is Koneh the Yevamah (mid'Oraisa, according to Rashi and some
Rishonim; see Insights to 39:2 -- even if he is not Koneh mid'Oraisa, it is
only because the Torah specifically excludes him from Yibum, and not because
he lacks Da'as )! (TOSFOS DH Yashen, and RASHBA)
(a) The RITVA answers that Bi'as Shogeg and Bi'as Ones are inherently
different from a sleeping person. In the cases of Bi'as Shogeg and Ones, the
Yavam is capable of Da'as, of having conscious intention, at the moment of
the act, but he just does not have in mind to be Koneh her. One who is
sleeping, on the other hand, is not capable of having Da'as altogether. (That
is what Rashi is emphasizing when he adds the words, "and his Kinyan is not a
valid Kinyan" -- he is not capable of making a Kinyan at the moment that he
How, though, does a Yashen differ from a Katan? A Katan is also not capable
of making a Kinyan, and yet we see that he is nevertheless Koneh a Yevamah!
The Acharonim (see YA'AVETZ) answer that a Katan might not be able to make a
Kinyan, but he certainly does have conscious thought processes, which can
even have Halachic ramifications (see Chulin 13b). The ARUCH LA'NER adds that
there are times when a Katan can even make a Kinyan (see TOSFOS in Sanhedrin
69b). Therefore, a Katan is not comparable to a sleeping person, who is
incapable of making any sort of Kinyan.
(b) TOSFOS (DH Yashen) and other Rishonim do not accept Rashi's reasoning.
They write that a sleeping person cannot be Koneh his Yevamah for a different
reason. The Gemara says (later on this Amud) that even though a person does
not need Da'as to be Koneh a Yevamah, he does have to have Kavanah to do an
act of Bi'ah. A person who is sleeping has no Kavanah to do an act of Bi'ah
at all. A Katan, though, could have Kavanah to do Bi'ah, even though he does
not have Da'as (i.e. willful *decision* to make a Kinyan).
(Rashi might disagree with this contention, and maintain that even one who is
sleeping is capable of Kavanah to do Bi'ah, see Nidah 43a.)
QUESTION: The Gemara derives from several phrases in the verse (Devarim 25:5)
that a person is Koneh his Yevamah with various types of Bi'os -- such as
Shogeg or Mezid, Ones or Ratzon, k'Darkah or sh'Lo k'Darkah. The phrase,
"Yevamah Yavo Aleha" teaches that the act of Yibum works whether it is done
b'Shogeg or b'Mezid, and whether it is done b'Ones or b'Ratzon. The phrase
"u'Lekachah" teaches that he is Koneh the Yevamah even with an act of Lo
The Gemara asks that there is a Beraisa that says that the phrase "Yevamah
Yavo Aleha" teaches that Bi'ah k'Darkah is Koneh, and if so, how can that
phrase teach that he is Koneh the Yevamah whether b'Shogeg or b'Mezid?
What is the Gemara asking? If the verse is teaching that he is Koneh her with
Bi'ah both b'Shogeg and b'Mezid, then obviously it is teaching that he is
Koneh her with Bi'ah k'Darkah! Why would we have thought that it is referring
to any other type of Bi'ah, other than k'Darkah?
ANSWER: The RASHBA answers that the Gemara means to ask that we cannot derive
Shogeg and Mezid, nor k'Darkah and sh'Lo k'Darkah, until we have a verse
teaching us that he is Koneh her with a normal Bi'ah k'Darkah. Once we have a
verse telling us how Yibum is to be done in the first place (i.e. with
Bi'ah), then the next verse can tell us that this Bi'ah works when done in
different ways, such as b'Shogeg, and she'Lo k'Darkah.
The Gemara's question is that the phrase "Yevamah Yavo Aleha" is the first
verse, which teaches us how the Mitzvah of Yibum must be done to begin with
(with Bi'ah). How, then, asks the Gemara, can we learn from the same phrase
that Bi'ah b'Shogeg also works? We will have to learn that from a different
verse, such as from "u'Lekachah," but then we will not have a third verse
available to teach us that he is Koneh her with Bi'ah she'Lo k'Darkah!
The Gemara answers that there *is* a third verse -- "l'Hakim l'Achiv Shem."
That verse teaches that Yibum is accomplished through Bi'ah (k'Darkah), and
from the other two verses we learn that additional forms of Bi'ah (b'Shogeg,
and she'Lo k'Darkah) also accomplish Yibum.