1)

YIBUM AND CHALITZAH OF A PREGNANT WOMAN (cont.)

(a)

Answer #2 (Rava): The Beraisa means, if one did Yibum and she was found to be pregnant, the Tzarah may not marry, in case the baby is viable. Yibum and Chalitzah of a pregnant woman are invalid, and a baby does not exempt until it is born.

(b)

Support (for Rava - Beraisa): If one did Yibum and she was found to be pregnant, the Tzarah does not marry, lest the baby is viable. Yibum and Chalitzah of a pregnant woman do not exempt, only the baby does, and a baby does not exempt until it is born.

(c)

Inference: The concern is lest the baby is viable. If it is not, the Tzarah is exempt!

(d)

Question: This refutes Reish Lakish!

(e)

Answer: Reish Lakish explains the Beraisa to say that if one did Yibum and she was found to be pregnant the Tzarah does may not marry lest the baby is a Nefel. The Yibum or Chalitzah of a woman who is pregnant (with a Nefel) is not valid;

1.

Suggestion: We should follow the majority of women, who have viable babies!

2.

Rejection: A baby does not exempt until it is born.

(f)

R. Elazar: We follow Reish Lakish. Is it possible that no Mishnah teaches his law?!

(g)

Support (for Reish Lakish - R. Elazar - Mishnah): If Leah's husband and Tzarah went overseas and witnesses told Leah that her husband died, she may not remarry or do Yibum until she learns whether or not her Tzarah is pregnant.

1.

Question: Granted, she cannot do Yibum, lest her Tzarah will have a viable baby, and Leah is Eshes Ach (with no Mitzvah of Yibum), an Isur mid'Oraisa. However, why can't she do Chalitzah?

i.

Granted, she cannot do Chalitzah and marry within nine months due to this concern (lest the Tzarah is pregnant). However, why can't she do Chalitzah within nine months and marry after nine months?

2.

(Implied answer: We must say that Chalitzah is invalid if she (or a Tzarah) is pregnant, like Reish Lakish!)

(h)

Objection: The Mishnah is difficult even for Reish Lakish!

1.

Question: Why can't she do Chalitzah after nine months, and then marry?

(i)

Rejection #1 (of Support, and answer to Questions g:1 and h:1 - Abaye bar Aba): The concern is lest the Tzarah give birth to a viable baby, and we would need a proclamation that Leah is permitted to a Kohen (since the Chalitzah was invalid).

1.

Question: Why can't we make such a proclamation?

2.

Answer: Perhaps someone saw the Chalitzah and did not hear the proclamation, and he will think that a Chalutzah was permitted to a Kohen.

(j)

Rejection #2 (of Support - Abaye): The Mishnah does not say she may not do Chalitzah or Yibum. It says that she may not remarry nor do Yibum, i.e., without Chalitzah;

1.

If she does Chalitzah, she is permitted!

(k)

Support (for Reish Lakish - Beraisa): If one did Chalitzah to a pregnant woman, and she miscarried, she needs Chalitzah from the brothers.

2)

WHERE THE HALACHAH FOLLOWS REISH LAKISH [line 42]

(a)

(Rava): The Halachah follows Reish Lakish in three places (where he disagrees with R. Yochanan). This is one of them (and we now give the other two).

(b)

(Mishnah): If Reuven divided his properly (said how much each of his heirs should inherit) and he gave more to one (brother) than another, or gave the firstborn a single share, his words take effect;

1.

If he called it an inheritance, it does not take effect. If he wrote that it is a gift, be it at the start, end or middle, it takes effect.

36b----------------------------------------36b

2.

(Reish Lakish): A recipient acquires only if (his share is called a 'gift', e.g.) Reuven said, 'Ploni and Almoni will inherit fields A and B, that I gave to them as a gift and they will inherit them' (for then, both are called gift. R. Yochanan says that as long as the document mentions a gift, all of the recipients acquire.)

(c)

(Mishnah): If one wrote 'All my property should go to my son after I die' - the father cannot sell it because he gave it to the son, and the son cannot sell because it is in the jurisdiction of the father;

1.

If the father sold, it is sold until he dies. If the son sold, the buyer gets nothing until the father dies.

(d)

(R. Yochanan): If the son sold and died in the life of the father, the buyer does not acquire it, for Kinyan Peiros (the (father's) right to the yield during his lifetime) is like Kinyan ha'Guf (owning the property itself. Therefore, the son's sale is null);

(e)

(Reish Lakish): The buyer acquires it. Kinyan Peiros is not like Kinyan ha'Guf.

3)

A WIFE MARRIED B'ISUR [line 13]

(a)

(Mishnah): (If a Yevamah did Yibum and was found to be pregnant...) if she gave birth to a Nefel (they may remain married.)

(b)

(Beraisa - R. Eliezer): He divorces her with a Get.

(c)

(Rava): R. Meir and R. Eliezer hold similarly.

1.

(Beraisa - R. Meir): Reuven may not marry a woman pregnant from Shimon or nursing a baby from Shimon. If he did, he must expel her and may never remarry her;

2.

Chachamim say, he must expel her, but he may remarry her (after she nursed the baby for) the proper time.

(d)

Objection (Abaye): Perhaps they differ! Perhaps R. Eliezer is stringent because the Yavam transgressed Eshes Ach mid'Oraisa, but regarding a mid'Rabanan law, he holds like Chachamim!

1.

Perhaps R. Meir is stringent about a mid'Rabanan Isur, for Chachamim strengthened their words more than mid'Oraisa laws, (we need not decree to make) people refrain from a mid'Oraisa transgression!

(e)

(Rava): Chachamim (in the Beraisa) say that he must give her a Get.

(f)

(Mar Zutra): The wording of the Beraisa proves this. It says "he expels her", not "he separates from her".

4)

IF SHE GAVE BIRTH TO A SAFEK NEFEL [line 29]

(a)

(Beraisa - R. Shimon ben Gamliel): Any baby that lived 30 days is viable.

(b)

Inference: If it lived less than 30 days, it is a Safek.

(c)

(Ravina citing Rava): If Reuven died, and then his only child died within 30 days of its birth, and David (a stranger) was Mekadesh the widow:

1.

If David is a Yisrael, she must do Chalitzah. If he is a Kohen, she does not need Chalitzah.

(d)

(Rav Mesharshiya citing Rava): In either case she must do Chalitzah.

(e)

Ravina: At night Rava said so, but in the morning, he retracted (and said like me)!

(f)

Rav Mesharshiya: You permit (Nisu'in even when David is a Kohen)! If only you would permit Chelev!