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YEVAMOS 36

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12th CYCLE DEDICATIONS
 
YEVAMOS 36 - Mrs. Rita Grunberger of Queens, N.Y., has dedicated a week of Dafyomi material in loving memory of her husband, Reb Yitzchok Yakov ben Eliyahu Grunberger. Irving Grunberger helped many people quietly in an unassuming manner and he is dearly missed by all who knew him. His Yahrzeit is 10 Sivan.

SUMMARY

Any time the Mitzvah of Yibum applies to a Yevamah, the Mitzvah of Chalitzah applies as well. Any time Yibum does not apply, Chalitzah also does not apply.
 
A man does Yibum and it turns out that the Yevamah was pregnant. The Tzarah may not remarry, because if the child survives, the Tzarah is not exempt until after the birth of the child.
 
A woman's husband went overseas together with the Tzarah, and she was told that her husband died. She may not remarry or do Yibum until she finds out if the Tzarah was pregnant. If she does Chalitzah, Bar Avin and Chanina bar Avin maintain that she is not permitted to remarry after the Chalitzah even if the Chalitzah was done nine months after the death of her husband. (1)
 
The Halachah follows the opinion of Reish Lakish that Chalitzah done with a pregnant Yevamah who subsequently miscarries is not a valid Chalitzah.
 
If a father gave away his property to his children as gifts and did not split it equally among them, or if he did not give the firstborn son an extra portion, the gift is valid. (2)
 
If a father gave his property to his children using the terminology of an inheritance and he did not divide it up equally among the children, or he did not give the firstborn son an extra portion, it is not valid. (3)
 
A father gave his property to his son "from today and after death." Neither the father nor the son may sell the property. (4)
 
If the son sells the property and subsequently the son dies during the lifetime of the father, Rebbi Yochanan says that the buyer does not receive the property, because the father's ownership of the produce is regarded as an ownership of the actual property. (5)
 
Reish Lakish maintains that if the son sells the property, the buyer receives the property upon the death of the father even if the son dies before the father, because the father's ownership of the produce is not regarded as an ownership of the actual property.
 
The Yavam performs Yibum and it turns out that the Yevamah was pregnant. If she subsequently miscarries, according to the Tana of the Mishnah they may stay married. Rebbi Eliezer says that he must give her a Get.
 
It is forbidden to marry a woman who is pregnant or nursing someone else's child. If a man does marry her, he must divorce her and he may never remarry her, according to Rebbi Meir. The Chachamim say that although he must divorce her, he may remarry her after the 24 months have passed.
 
A Yevamah gives birth, and the child dies within thirty days. She does Kidushin with someone other than the Yavam. Ravina says in the name of Rava that if her husband is a Yisrael, she must do Chalitzah. If he is a Kohen, she does not have to do Chalitzah. Rav Mesharshiya says in the name of Rav that in both cases she must do Chalitzah. (6)

A BIT MORE

1. The reason why we do not allow her to remarry even if she does Chalitzah is that perhaps the Tzarah will have given birth and thus the Chalitzah was unnecessary, and she will be permitted to marry a Kohen. That may cause people to think that a Chalutzah is permitted to a Kohen. Even if we announce that the Chalitzah was not valid and that is why she is permitted to a Kohen, there may be some people who are not aware of the announcement. Abaye disagrees and maintains that if she does Chalitzah she may remarry.
 
2. Since he gave it as a gift and it was not an inheritance, it is not regarded as being in defiance of the Torah that commands one to give each child an equal portion with the exception of the Bechor who takes an extra portion.
 
3. This is because the father's stipulation is regarded as being in defiance of the Torah. However, if he uses the term "gift" at any point in the will, it is regarded as a gift and is valid. Reish Lakish: If he used the term "inheritance" for one of the recipients and the term "gift" for another recipient, the recipient for whom he used the term "inheritance" does not acquire the property unless the term "gift" was used for both of them. Rebbi Yochanan: Since the term "gift" was used with one of them, all of the recipients acquire the property, even the one for whom he used the term "inheritance." Rava says that the Halachah follows the opinion of Reish Lakish.
 
4. The father retains the rights to the produce of the property until his death, while the son becomes the owner of the actual property. If the father sells the property, the buyer may eat the produce until the death of the father.
 
5. Therefore, even upon the death of the father, the buyer would not attain the property. However, if the son is still alive at the time of the death of the father, the buyer attains the property, because the buyer acquires all of the rights that the son has to the property.
 
6. If a child dies within thirty days of birth, he is a Safek Nefel. Accordingly, it is a Safek whether the Yevamah requires Chalitzah or not. Therefore, if a Yisrael does Kidushin with her, since Chalitzah does not prohibit her to her husband, she must do Chalitzah. However, if she married a Kohen, since a Kohen is prohibited to a Chalutzah, she does not have to do Chalitzah, according to Ravina.

BRIEF INSIGHT

THE VALIDITY OF AN ACT OF YIBUM WITH A PREGNANT YEVAMAH
 
The Beraisa says that according to Rebbi Eliezer, if the Yavam does Yibum and it turns out that the Yevamah was pregnant, if she subsequently miscarries he must give her a Get. Rashi says that a Get alone is enough and no Chalitzah is necessary. The Maharsha say that Rashi is explaining according to Rebbi Yochanan, who maintains that the Bi'ah of a pregnant Yevamah is a valid Yibum, and therefore no Chalitzah is necessary and a Get suffices. However, according to Reish Lakish, who maintains that the Bi'ah of a pregnant Yevamah is not a valid Yibum, Chalitzah would be required along with the Get. However, it would be forbidden for him to do Yibum before giving her a Get, according to Reish Lakish. Since we are forcing him to divorce her, we will not allow him to do Yibum prior to the divorce.

QUICK HALACHAH

A YEVAMAH WHO WAS PREGNANT BUT MISCARRIED
 
If the Yevamah is pregnant and she subsequently miscarries, she must do Chalitzah or Yibum. If she gives birth, she is exempt from Chalitzah and Yibum, even if the child dies immediately after birth. However, mid'Rabanan she is exempt only if we know for sure that the child was born at the end of nine months of pregnancy.
 
However, some say that nowadays even if the child was born after the first day of the ninth month, he is not considered a Nefel. Even though Chazal say that a nine-month child is not born in the middle of the month, we see that this is no longer the case. We must conclude that the nature has changed, which is true regarding many other matters as well. (Shulchan Aruch EH 156:4)

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