YEVAMOS 29 - Dedicated l'Iluy Nishmas Reb Naftali ben Reb Menachem Mendel Bodner Z"L by his wife, Alice Bodner. A man who loved Chesed, Tuli Bodner applied his many talents to help everyone he knew in any way he could. His cheerful greeting is warmly remembered by all who knew him. He was Niftar on 5 Cheshvan 5765; Yehi Zichro Baruch.
1) THE REQUIREMENT THAT AN "ISUR ERVAH" DO CHALITZAH
QUESTION: Rebbi Shimon maintains that if two related women (such as two sisters) 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" (she is prohibited to the Yavam because of an Isur d'Rabanan) or an "Isur Lav" (she is prohibited to the Yavam because of an Isur Lo Ta'aseh, but not an Isur Kares), that sister needs Chalitzah.
The Gemara asks that if two sisters who fall to Yibum together are exempt mid'Oraisa, 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 although there is no reason to require Chalitzah mid'Oraisa, the Chachamim enacted that Chalitzah be done so that people not mistakenly think that a woman who is 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. As part of this enactment, the Chachamim also required that the sister of the "Isur Mitzvah" do Chalitzah, so that people not mistakenly assume that just as the Tzarah does not need Chalitzah (because she is one of two sisters) the "Isur Mitzvah" also does not need Chalitzah (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 instituted such enactments, they also should have instituted a similar enactment in the case of an "Isur Ervah" who falls to Yibum.
What is the Gemara's question? An "Isur Ervah" who falls to Yibum does not need Yibum or Chalitzah, even when she is the only Yevamah! Why does the Gemara ask that the Chachamim should have required Chalitzah for an "Isur Ervah" who falls to Yibum with her sister?
ANSWERS: RASHI (in two consecutive comments) explains the Gemara's question in two different ways. (The MAHARSHA corrects the text of Rashi to read "Lishna Acharina" at the beginning of the second comment of DH Migmar Gemiri.) Rashi's explanation, however, is terse. The two approaches are elucidated in more detail in the TOSFOS YESHANIM.
(a) Rashi's first answer is the same as that of TOSFOS and the first answer of the TOSFOS YESHANIM. The Gemara refers to a case in which two sisters fall to Yibum, and one of them is an Ervah to the remaining brother. In that case, the Chachamim should have required the woman who is an Ervah to do Chalitzah. The reason she should need Chalitzah is the same reason for which Chalitzah was instituted for the Tzarah of an "Isur Mitzvah." The Chachamim did not want people to think that she does not fall to Yibum because of the Halachah that two sisters who fall together to Yibum are exempt, and mistakenly assume that her sister (who is not an Ervah) is also completely exempt from Yibum and Chalitzah.
Rashi (DH v'Ha) apparently is bothered by the logic of the Gemara's question. Why does the Gemara suggest that an Ervah should perform Chalitzah due to a Gezeirah? The Gemara elsewhere (31a) says that the Chachamim were careful not to institute Chalitzah when Yibum may not be performed because, "If we tell them to do Chalitzah, someone may think that Yibum may be performed as well." Accordingly, perhaps the Chachamim did not institute Chalitzah for an Ervah for this reason, whereas they did institute Chalitzah for the Tzarah of an "Isur Mitzvah."
Rashi answers this question. The Tzarah of an "Isur Mitzvah" is also an Ervah mid'Oraisa, and yet the Chachamim required that she do Chalitzah. Since she is Halachically exempt from Yibum according to Rebbi Shimon (due to the law of two sisters who fall to Yibum 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 the TOSFOS YESHANIM suggest a second answer. The Gemara does not question why the Chachamim do not require Chalitzah for the woman who is an "Isur Ervah" in the case of two sisters who fall to Yibum and one sister is an Ervah to the remaining brother. Rather, the Gemara asks that the Chachamim should have prohibited the sister who is not an Ervah from doing Yibum, lest people erroneously 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 refers to the Ervah, while the latter phrase refers to the Tzarah of the Ervah. The Gemara means that even the Tzarah has a Kol, and thus all will know why Yibum was permitted in her case. According to the first explanation of the Gemara, both phrases refer to the Ervah herself.) (M. KORNFELD)
2) TO WHAT EXTENT IS "MA'AMAR" CONSIDERED MARRIAGE
QUESTION: Beis Shamai maintains that when a Yavam performs Ma'amar with a Yevamah, he is "Koneh" the Yevamah. Rebbi Elazar, in the first version (29a) of his clarification of Beis Shamai's opinion, says that this does not mean that Ma'amar is Koneh the Yevamah completely (such that he subsequently may divorce her with a Get, without having performed Yibum or Chalitzah with her). Rather, it means that Ma'amar is Koneh the Yevamah only insofar as it releases ("Docheh") her Tzarah completely (so that the Tzarah does not need Chalitzah, and so that the Zikah of her Tzarah to the Yavam does not render the first sister forbidden to the Yavam as "Achos Zekukaso").
The Gemara attempts to support Rebbi Elazar's explanation from an earlier statement of Beis Shamai. In the Mishnah earlier (26a), Beis Shamai says that when two sisters fall to two brothers for Yibum, l'Chatchilah they must do Chalitzah, but if, b'Di'eved, they did Yibum, they may remain married ("Yekayemu"). If Beis Shamai maintains that Ma'amar is Koneh completely, then each brother should perform Ma'amar with one sister and marry her l'Chatchilah. It must be that Ma'amar is not Koneh the Yevamah completely.
The Gemara questions the proof from the Mishnah and asks that even if Ma'amar serves merely to release the Tzarah, each brother still should be able to do Yibum with one of the sisters l'Chatchilah, because once one brother does Ma'amar with one sister, he releases the second sister (her Tzarah) so that she is no longer Zekukah to him, and he may do Yibum with the first sister who is no longer "Achos Zekukaso."
The Gemara answers that only "Ma'amar of Heter" is Koneh the Yevamah such that her Tzarah is released from Zikah completely. In contrast, "Ma'amar of Isur" (such as Ma'amar with one of two sisters with whom Yibum otherwise would have been forbidden, as in the case of the Mishnah on 26a) is not strong enough to release the Tzarah, and thus the Isur of "Achos Zekukaso" remains (and that is why Beis Shamai on 26a permits them to remain married only b'Di'eved).
The Gemara quotes a second version of Rebbi Elazar's clarification of Beis Shamai's opinion. Rav Ashi says in the name of Rebbi Elazar that when Beis Shamai says that Ma'amar is Koneh, he means that it releases the Tzarah only partially. Ma'amar serves to release the Tzarah only insofar as she is no longer considered "Achos Zekukaso," but it does not release the bond of Zikah entirely; she still must do Chalitzah.
The Gemara attempts to support Rav Ashi's explanation from the same Mishnah (26a) which it quotes earlier in the first version. Beis Shamai says that when two sisters fall to two brothers for Yibum, l'Chatchilah both must do Chalitzah. If Beis Shamai maintains that Ma'amar releases the Tzarah completely, in the case of the Mishnah earlier he should say that the two brothers may do Ma'amar and then Yibum l'Chatchilah. It must be that Beis Shamai maintains that Ma'amar is Koneh only in part.
The Gemara questions the proof from the Mishnah earlier. The Mishnah here (29a) discusses a case in which two brothers are married to two sisters and one brother dies, and a third (unmarried) brother does Ma'amar with the Yevamah. The second married brother then dies. Beis Shamai maintains that the remaining brother may remain married to his wife (the Yevamah with whom he did Ma'amar), and the other Yevamah is prohibited to him as "Achos Ishto," the sister of his wife, and does not need even Chalitzah. If, however, Ma'amar is Koneh only in part, the other Yevamah should need Chalitzah.
The Gemara answers that "when a Yevamah is fit to do everything (Chalitzah and Yibum), she is also fit to do a partial form (Ma'amar). When she is not fit to do everything, she is not fit to do a partial form (Ma'amar)." This means that Ma'amar is Koneh the Yevamah such that her Tzarah is released from Zikah completely only when the Yevamah is fit for all aspects of Yibum. In contrast, when the Yevamah is not fit for all aspects of Yibum, Ma'amar (such as Ma'amar with one of two sisters with whom Yibum otherwise would have been forbidden, as in the case of the Mishnah on 26a) is not strong enough to release the Tzarah, and thus the Isur of "Achos Zekukaso" remains. (That is why Beis Shamai in the Mishnah on 26a permits them to remain married only b'Di'eved, while in the Mishnah on 29a he permits the third brother to remain married l'Chatchilah; at the time he did Ma'amar with her, she was fit for both Yibum and Chalitzah).
The Gemara's answer in the second version seems to be the same answer that it gives in the first version. There is a difference between "Ma'amar of Heter" (Ma'amar in a situation in which Yibum may be done) and "Ma'amar of Isur." Why does the Gemara change its wording if the answer is the same? (TOSFOS 29a, DH Ela)
(a) The ARUCH LA'NER suggests that the Gemara in the first version maintains "Yesh Zikah" (as Tosfos writes on 18b, DH Omrim). When the Gemara refers to "Ma'amar of Isur," it refers to Ma'amar (not necessarily with a consummation of the union) which is done with a woman who is "Achos Zekukaso." In such a case, the brother transgresses an Isur d'Rabanan even when he does merely Ma'amar with her. The Gemara teaches that "Ma'amar of Isur" is not strong enough to break the bond of Zikah since it involves a transgression of an Isur d'Rabanan.
In contrast, the Gemara in the second version maintains that even if the Halachah is "Ein Zikah," there is still reason to say that Ma'amar does not release the Tzarah entirely. Although the brother transgresses no Isur with his act of Ma'amar if the Halachah is "Ein Zikah" (because "Achos Zekukaso" is not prohibited according to the opinion that maintains "Ein Zikah"), nevertheless the Ma'amar is not strong enough to release the sister who is a Tzarah where Yibum cannot be performed with the same woman. (That is, even according to the opinion that maintains "Ein Zikah," Yibum cannot be done with the first sister because of the Isur of "Bitul Mitzvas Yevamim.")
RASHI, however, does not follow this approach. Rashi explicitly writes that "Ma'amar of Isur" does not refer to an act of Ma'amar which is done by transgressing an Isur. The act of Ma'amar alone (when Yibum is not done) is never prohibited. Rather, it refers to an act of Ma'amar with a woman with whom one may not do Yibum. Similarly, Rashi explains that the Gemara in the second version maintains "Yesh Zikah," and thus "Yesh Zikah" is the reason for why the brothers are prohibited from doing Yibum with each sister. Accordingly, the Aruch la'Ner's approach does not resolve the problem according to the explanation of Rashi.
(b) The difference between the two versions may be whether Ma'amar takes effect in the first place with a woman with whom Yibum may not be done. The first version explains the opinion that Ma'amar is a full-fledged Kinyan. According to this opinion, Ma'amar constitutes an independent act of Kidushin which is neither related to nor dependent upon the act of Yibum. Since Ma'amar and Yibum are unrelated, Ma'amar takes effect even when Yibum cannot be done. The Gemara proposes only that when Yibum may not be done, the bond of Zikah is weak and, consequently, the Ma'amar is weak and is unable to release ("Docheh") the Tzarah.
The second version explains the opinion that Ma'amar is not a full-fledged Kinyan, but is just enough of a Kinyan to release ("Docheh") the Tzarah from the bond of Zikah. Accordingly, it is reasonable to assume that Ma'amar was instituted merely as a preliminary act to Yibum, and it is not an independent Kinyan at all. According to this view, the Gemara says that it is logical that when Yibum cannot be done, Ma'amar also cannot take effect in the first place. (M. KORNFELD)
(c) TOSFOS explains that the Gemara (in the second version) does not attempt to resolve the opinion that Ma'amar releases the Tzarah completely. The Gemara already rejected that position (in the first version). Rather, the Gemara asks that since Ma'amar does not release the Tzarah completely, why does the Mishnah say that the sister (of the Yevamah with whom Ma'amar was done) is released without Chalitzah? If the Ma'amar does not release her completely, she should require Chalitzah!
The Gemara answers that the requirement for Chalitzah depends on the strength of the original "falling" ("Nefilah") to Yibum. In the case of the Mishnah here, when the second sister fell to Yibum she was already "pushed away" from the Zikah according to Beis Shamai (because the Yavam already betrothed the first sister with Ma'amar). She is considered as though she never fell to Yibum in the first place, and thus she does not need Chalitzah. In contrast, when a woman falls to Yibum and the full bond of Zikah takes effect, and afterwards she becomes "pushed away" from the Zikah (because Ma'amar was later done with her sister), that woman is not exempt from Chalitzah. (For example, in the case of the Mishnah on 26a, Ma'amar releases the other sister, but she still needs Chalitzah.)
3) THE STATUS OF THE "KINYAN" OF "MA'AMAR" ACCORDING TO BEIS SHAMAI: MID'ORAISA OR MID'RABANAN?
QUESTION: The Gemara discusses whether the Kinyan effected by Ma'amar is considered like Erusin or Nisu'in. The Gemara questions how Ma'amar can be more effective than an ordinary act of Erusin.
RASHI explains the Gemara's question. Since an ordinary act of Erusin takes effect mid'Oraisa while Ma'amar is only d'Rabanan, obviously Ma'amar cannot be considered Erusin. (The Gemara later entertains the possibility that Ma'amar is more effective than Erusin; see MAHARSHA and RASHBA.)
Rashi's explanation is difficult to understand. The Gemara here is discussing the opinion of Beis Shamai. Beis Shamai maintains that Ma'amar is able to release ("Docheh") a Yevamah's Tzarah completely so that she does not need even Chalitzah. Accordingly, Ma'amar must take effect mid'Oraisa!
Moreover, the Gemara earlier (18a) teaches that according to Beis Shamai, in a case in which Reuven dies and his wife falls to Shimon who does Ma'amar with her, and then another brother (Levi) is born and then Shimon dies, Shimon's first wife is "Tzaras Eshes Achiv she'Lo Hayah b'Olamo" to Levi. Consequently, the woman with whom Shimon performed Ma'amar is considered married to Shimon and exempts Shimon's first wife from Yibum and Chalitzah. This ruling implies that Ma'amar is considered a full-fledged marriage. If Ma'amar is mid'Rabanan as Rashi here writes, how can it exempt a woman from Chalitzah and Yibum? (TOSFOS 29a, DH Beis Shamai)
(a) The RASHBA explains that Rashi does not mean that Ma'amar is only mid'Rabanan. Rashi agrees that Ma'amar effects a Kinyan d'Oraisa. When he writes that it is mid'Rabanan he means that a man is not Chayav Sekilah for living with a woman with whom another man performed Ma'amar (when he would have been Chayav Sekilah had she been married with Erusin to the other man).
However, the TOSFOS HA'ROSH and others understand Rashi's words in their literal sense, that Ma'amar is only mid'Rabanan.
(b) The KESONES PASIM (cited by Rav Aharon Yaffen zt'l in his footnotes to the Ritva) explains that according to Beis Shamai, Ma'amar certainly creates a Kinyan of Yibum mid'Oraisa. However, it does not create a Kinyan of Ishus mid'Oraisa but only mid'Rabanan. "Ishus" refers to the bond of marriage which entitles the husband and wife to certain benefits from each other (such as those mentioned in the Gemara here).
This explanation, however, does not seem consistent with Rashi's words. Rashi's words imply that Ma'amar is mid'Rabanan because a Kinyan of Yibum mid'Oraisa is created only through actual relations (Bi'ah), as the verse says, "Yevamah Yavo Aleha" (Devarim 25:5). Rashi seems to refer to the Kinyan of Yibum when he says that Ma'amar works only mid'Rabanan.
(c) The ARUCH LA'NER (29a) explains that, indeed, the opinion that Ma'amar merely releases ("Docheh") the Tzarah (and is not a complete Kinyan) maintains that Ma'amar is only mid'Rabanan. When Beis Shamai says that Ma'amar releases the Tzarah such that she does not need Chalitzah, he refers only to after the Yavam has had relations with her after the Ma'amar, as Tosfos (DH Ela) writes in his explanation of Rashi. Ma'amar serves to remove the Isur of "Achos Zekukaso," after which the Bi'ah with the Yevamah releases the other sister, the Tzarah, completely. Hence, the only result which Ma'amar accomplishes is the removal of the Isur of "Achos Zekukaso."
The Gemara earlier (18a) follows the opinion that Ma'amar effects a complete Kinyan according to Beis Shamai, and thus the Kinyan is mid'Oraisa. That explains why Ma'amar transforms the woman with whom it is performed into a Tzaras Ervah in that case.
(d) Perhaps Beis Shamai maintains that the procedure of Ma'amar is mid'Rabanan, and it is the Zikah which gives a woman the status of "Kenusah" (married) mid'Oraisa, as Rebbi Oshiyah (18b) says (according to some Rishonim, this is the opinion of Rebbi Shimon in the Mishnah on 28b according to all of the Amora'im; see RIVAN and RABEINU AVRAHAM MIN HA'HAR). Since Zikah gives the woman the status of "Kenusah," as soon as the first sister's husband dies and she falls to Yibum she is considered married -- because of Zikah -- to the unmarried brother (see Gemara, beginning of 19a). Then, when the second sister's husband dies and she 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 maintains that the Chachamim decreed that Zikah not be "k'Kenusah" and that it not make the woman married to the Yavam. The Chachamim enacted that she be considered not married to the Yavam (that is, they enacted that the situation be treated as though the Halachah is "Ein Zikah," l'Chumra). Accordingly, in the case of the Mishnah here, the Zikah of the second sister is only mid'Rabanan. This is why Ma'amar (with the first sister) is able to release the second sister without Chalitzah. Ma'amar, which is only mid'Rabanan, is able to override the other enactment of the Chachamim which states that Zikah is not "k'Kenusah" and which requires the Tzarah to do Chalitzah.
The same reasoning applies in the case of "Eshes Achiv she'Lo Hayah b'Olamo." As soon as Reuven dies, Shimon is considered 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 forbidden 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 agree with Rebbi Shimon's opinion about "Eshes Achiv she'Lo Hayah b'Olamo.") The Chachamim, however, decreed that Zikah not be considered "k'Kenusah," and therefore Levi should need to do Chalitzah with Shimon's wife (because, mid'Rabanan, she is not considered to be a Tzarah of the wife of Reuven, who is "Eshes Achiv she'Lo Hayah b'Olamo"). In this case, Ma'amar d'Rabanan is sufficient to remove the Takanah d'Rabanan which requires Levi to do Chalitzah with Shimon's wife. (The same logic applies to the ruling of Rebbi Shimon (on 19a) who is in doubt whether "Ma'amar is a Kinyan" or not.) (M. KORNFELD)