QUESTION: The Mishnah discusses a case of a nine year-old boy who lived with
his Yevamah, and then his nine year-old brother also lived with her. The Tana
Kama rules that the woman becomes prohibited to both of them. Rebbi Shimon
rules that she remains permitted to the first Katan.
RASHI asks how is it that she remains permitted to the first Katan? After the
second Katan lives with her, she becomes a Sotah, for she committed adultery
with him! Rashi adds that even though the adulterer was a Katan, nevertheless
his Bi'ah is considered a real Bi'ah and she is punishable with Misah for
such a Bi'ah. Rashi answers that when she lived with the second Katan, she
did so b'Shogeg (inadvertently), not realizing that it was not her husband,
or not aware that it was prohibited, and therefore she does not become a
Sotah and she remains permitted to her husband.
It seems that Rashi is following his view (in Kidushin 19a, DH d'mid'Oraisa;
see Insights to Yevamos 39a) that the Yibum performed by a nine year-old is
considered a valid Yibum mid'Oraisa, and therefore the act of Yibum creates a
bond of Kidushin, and the woman will become a Sotah if she lives with someone
else after doing Yibum with the nine year-old.
Even so, Rashi's words are difficult to understand. Rashi writes that "the
Bi'ah of a nine year-old is a real Bi'ah and she is killed for the Bi'ah
(having adultery) with a nine year old." However, the Gemara in Kidushin
(19a) clearly says otherwise. The Gemara there derives from a verse that a
man who commits adultery with the wife of a Katan (and the wife herself as
well) is *exempt* from punishment! Even according to Rashi -- who learns
that there is Kidushin mid'Oraisa with a Katan -- there still is no
punishment of Misah mid'Oraisa because the verse excludes adulterers from
punishment in such a case! (TOSFOS YESHANIM, RABEINU AVRAHAM MIN HA'HAR)
ANSWER: The MAHARSHA and YASHRESH YAKOV explain that Rashi does not mean that
in *this* case, when the woman is married to a nine year-old, the woman can
be killed for committing adultery with another nine year-old. Rather, Rashi
means that in a case where she is married to a *Gadol*, she would be killed
for committing adultery with a nine year-old. (This is similar to what Rashi
writes on 51b, DH Bi'as Sheni.) Rashi is simply proving from the fact that
she would be killed for committing adultery with a nine year-old, in a normal
case when she is married to a Gadol, that the Bi'ah of a nine year-old is
considered a Bi'ah and can make her Asur to her husband.
Accordingly, there is no longer proof from here that Rashi is following his
view that the Yibum of a nine year-old is mid'Oraisa. Even if his Yibum is
only mid'Rabanan and has the status of Ma'amar, Rashi could still ask that
she should become Asur from the Kidushin *d'Rabanan* with the Katan if she
lives with someone else after the Yibum (as TOSFOS writes on 51b, DH Iy Bi'as
Rishon). However, even though there is no proof from Rashi's words here,
Rashi does seem to hold that the Yibum of a nine year-old is mid'Oraisa (in
Kidushin, loc. cit., and in Sanhedrin 55a, DH Kan'ah; see Insights to 39a).
The RAMBAN here points out that Rashi later on this Amud seems to contradict
himself and say that a nine year-old's Yibum is *mid'Rabanan*. Rashi (DH
Harei Zu Peturah) writes that a Katan cannot be *Mekadesh* a woman with
normal Kidushin until he show signs of maturity and grows two hairs. However,
the Rabanan gave his act of *Yibum* with her the status of Ma'amar, because
she is already Zekukah to him. Rashi seems to be saying that the Rabanan are
*instituting* a new bond of Kidushin, and not *removing* a bond of Kidushin,
when they say that a Katan's Yibum is equated to Ma'amar (see Yashresh
Yakov)!
In light of what we quoted from Rashi elsewhere, it is likely that Rashi here
does not mean that the Rabanan are *creating* the bond of the Katan's Yibum.
Rather, Rashi is saying that if the Rabanan invalidated the Yibum d'Oraisa of
a nine year-old and ruled that it does not create a true bond because a
regular Kidushin done by a nine year-old is not valid, then they should not
have given it even the status of Ma'amar! They should have said that after a
Katan lives with his Yevamah, it is as if nothing happened and she remains a
Yevamah and is permitted to the other brothers! To that question, Rashi
answers that since she is Zekukah to the Katan, the Rabanan said that there
is a bond between them, even though he is a Katan.
How, though, can Rashi be asking that the Rabanan should have instituted that
the Yibum of a Katan is completely invalid, and does not even have a status
of Ma'amar? Mid'Oraisa, the woman is married to the Katan who did Yibum with
her, and she is an Eshes Ish and needs a Get. Certainly, she cannot do Yibum
with any of the other brothers after that! The Katan's Yibum should at least
be like Ma'amar as far as prohibiting her to the other brothers!
The answer is that Rashi means that the Rabanan should have made it like
Ma'amar *only* with regard to prohibiting her from doing Yibum with the other
brothers, and not like Ma'amar with regard to anything else. There are other
ramifications of Ma'amar that the Rabanan should not have instituted. Rashi
in Nidah (45a) and in Sanhedrin (55b) writes that once the nine year-old
lives with the Yevamah, he is considered like her husband and inherits her
property. Apparently, Ma'amar grants a Yavam the property of his brother, and
since a nine-year-old's Bi'ah is like Ma'amar, he, too, inherits the
Yevamah's property. Rashi here is asking that the Katan's Yibum should not
have the status of Ma'amar with regard to inheriting her, mid'Rabanan. To
that, Rashi answers that since she is Zekukah to him, the Rabanan allowed his
Yibum to have the status of Ma'amar in all respects. That is what the Beraisa
(96a) means when it says "the Rabanan made the Bi'ah of a nine-year-old like
the Ma'amar of a Gadol." They allowed him to acquire his brother's property
just like a Yavam who does Ma'amar.
AGADAH: The Gemara relates that Rebbi Yochanan was very upset with Rebbi
Elazar for not repeating the teachings of Rebbi Yochanan in his name, because
when one relates teachings in the name of the Rebbi who said them, then the
Rebbi's "lips move in the grave" and it is as if he is still alive (Rashi).
Based on this, the MAHARSHA (Mahadura Basra) suggests a marvelous
interpretation of why Yakov was so upset at the news of Yosef's death.
(a) When Yakov heard that Yosef died, he refused to be comforted, saying, "I
will descend to the grave in mourning" ("Ki Ered El B'ni Avel She'olah" --
Bereishis 37:35). He did not say "b'Yagon She'olah," as he said when he
protested against the brothers taking Binyamin to Mitzrayim (Bereishis 42:38)
but rather "*b'Evel* She'olah." Why the change in expression?
We know that Yakov Avinu taught Yosef, to the exclusion of his other sons,
everything he learned from Shem and Ever (Rashi, Bereishis 37:3). When Yakov
was told that Yosef had died, he thought that no one will be able to repeat
his teachings. This worried him -- as it did Rebbi Yochanan -- because as a
result, after he dies he will be like an Avel who "has no mouth" (Rashi,
Bereishis 25:30). His lips will not move since no one will be repeating his
teachings, causing his lips to move in the grave.
This is what Yakov meant when he refused to be comforted "*Because* ("Ki") I
will descend to the grave in mourning." He meant, "I might be comforted for
the loss of my precious son, but how can I be comforted for the loss I will
endure after I reach the World of Truth, when I will be mute, like an Avel!"
(b) When Yakov was finally reunited with Yosef, he declared "Amusah ha'Pa'am"
-- "Now I can die after having seen your face" (Bereishis 46:30). After
seeing that Yosef was still alive, Yakov was no longer afraid to die, because
Yosef would teach Yakov's teachings and thereby cause Yakov's lips to move in
the grave, keeping Yakov alive, so to speak, even after his death.
(c) The Gemara in Megilah says that one of the presents that Yosef sent to
Yakov was old wine. With this present, he hinted to his father that he need
not fear silence in the grave.
The Yerushalmi in Shekalim says that the pleasure the deceased has when
someone says over his teachings is comparable to the pleasure of a person
"who drinks old wine; even after drinking it, the taste remains in one's
mouth for a long time." Yosef was hinting that he did not forget any of the
teachings of Yakov. As Rashi says (Bereishis 45:27), he sent Yakov "Agalos"
to remind him of the last Halachic discussion they had together. The old wine
meant that Yosef would repeat his father's teachings after Yakov's death, and
Yakov's lips would move in the grave, like one who drinks old wine and
continues to have pleasure from the taste after the drink is finished.