# dafyomi

lvr: 31
dfh: b
trd:
</p><p>
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Kidushin of Chayavei Lavin takes effect, so 
               it is more reasonable to include them than Chayavei 
               Kerisos.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rava - Beraisa):</font></b> If one did Yibum or Chalitzah 
          with Isurei Mitzvah or Isurei Kedushah, the Tzarah is 
          exempted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If mid'Oraisa Chayavei Lavin do Chalitzah but not 
               Yibum, why does Yibum exempt the Tzarah?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> The Beraisa taught separate laws together;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Yibum of Isurei Mitzvah or Chalitzah of Isurei 
               Kedushah exempts the Tzarah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Rava - Beraisa):</font></b> If Reuven is a Petzu'a Daka, 
          Krus Shofchah or Seris Adam (castrated, and hence 
          forbidden to marry), or if he is too old (to have 
          children), he does Chalitzah or Yibum (Rashi - Yibum is 
          Asur, but if done it acquires; Hagahos ha'Gra - he does 
          Chalitzah <i>but not</i> Yibum);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If his widow fell to Yibum and his brother Shimon 
               gave a Ma'amar or Get or did Chalitzah, it takes 
               effect. If he did Yibum, he acquires her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon died and Reuven gave a Ma'amar or Get or 
               did Chalitzah, it takes effect. If he did Yibum, he 
               acquires her, but they may not remain married - 'Lo 
               Yavo Fetzu'a Daka...(bi'Khal Hash-m)'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If mid'Oraisa, Chayavei Lavin do Chalitzah but not 
               Yibum, why does he acquire her through Yibum?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #2 (to Question (c) - Rava):</font></b> Also a widow from 
          Kidushin is forbidden to a Kohen Gadol by an Aseh (as 
          well as a Lav), 'Kedoshim Yihyu.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How can we answer for a Mamzeres or 
               Nesinah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> There is an Aseh (even for Yisraelim) 
               'V'Hiskadashtem'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> If so, every Lav in the Torah is also an 
               Aseh!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #3 (Rava):</font></b> Chachamim decreed that a widow from 
          Kidushin may not do Yibum, lest a widow from Nisu'in do 
          Yibum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How can we answer for Mamzeres or Nesinah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Chachamim forbade them to do Yibum, lest one 
               marry them Stam (without the Mitzvah of Yibum).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> If so, we should forbid a paternal 
               brother to do Yibum, lest a maternal brother (marry 
               Eshes Achiv, and) think that he does Yibum!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> People will not confuse these. They know 
               that Yibum depends on inheritance.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> We should forbid a woman without children 
               to do Yibum, lest a woman with children do Yibum!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> People will not confuse these. They know 
               that Yibum depends on (not having) children.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection:</font></b> We should forbid Eshes Achiv she'<i>Hayah</i> 
               b'Olamo to do Yibum, lest Eshes Achiv she'Lo Hayah 
               b'Olamo do Yibum!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> People will not confuse these. They know 
               that Yibum depends on dwelling together in the 
               world.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection:</font></b> No woman should do Yibum, lest an Ailonis 
               do Yibum!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> An Ailonis is uncommon, so we do not make 
               such a decree.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Objection:</font></b> Mamzeres and Nesinah are also uncommon 
               (yet we decreed)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #4 (Rava):</font></b> We forbid Yibum lest he have a second 
          Bi'ah with her (which is forbidden).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support (Beraisa):</font></b> If they did Yibum he acquires her 
               with the first Bi'ah. A second Bi'ah is forbidden.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Retraction (and Answer #5 - Rava):</font></b> My answer is wrong. 
          Reish Lakish taught that an Aseh overrides a Lav only if 
          one cannot fulfill both;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, both can be fulfilled through Chalitzah!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If they did Yibum, he acquires her.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  Answer #5 is refuted.
<br>

sjt:
<p>
<font><b>2) THE COMPARISON BETWEEN ZIKAH AND KIDUSHIN</b></font><b>
<br>OPINIONS:</b> The Gemara differentiates between Chayavei Lavim and Chayavei Kerisus with regard to the obligation to do Chalitzah. Chayavei Lavim must do Chalitzah, and Chayavei Kerisus are exempt. The Gemara says that Chayavei Lavim must do Chalitzah because Kidushin takes effect with such women, while Chayavei Kerisus are exempt from Chalitzah because Kidushin does not take effect with such women.
</p><p>
What does the Gemara mean when it derives the requirement for Chayavei Lavim to do Chalitzah from the fact that Kidushin with Chayavei Lavim takes effect? Is the Gemara expressing merely an <i>indication</i> ('Siman') that Chayavei Lavim must do Chalitzah, or is the Gemara expressing a <i>causative</i> factor ('Sibah') which is the reason <i>why</i> Chayavei Lavim must do Chalitzah? If it is a 'Siman,' then the Gemara is not saying that Chayavei Lavim have Chalitzah <i>because</i> their Kidushin takes effect. Rather, the Gemara is saying that since Chayavei Lavim are more lenient with regard to the Ishus of Kidushin, it is logical to assume that when the verse gives an additional obligation of Chalitzah, it is referring to Chayavei Lavim.
</p><p>
On the other hand, if it is a 'Sibah,' then the Gemara means that since Kidushin does not take effect with Chayavei Kerisus, Zikah also cannot take effect with such women, and if there is no Zikah there is no need for Chalitzah. Since Kidushin <i>does</i> take effect with Chayavei Lavim, Zikah also takes effect and thus there is an obligation to do Chalitzah.
</p><p>
The nature of the Gemara's teaching is apparently the subject of a dispute among the Rishonim which has considerable relevance and implications throughout the Masechta.
</p><p>
(a) <b>RASHI</b> and <b>TOSFOS</b> seem to understand that it is only a 'Siman.' The fact that there is no Kidushin for Chayavei Kerisus does not necessarily mean that there is no Zikah. Rather, the fact that there is no Kidushin merely provides more reason to assume that this particular verse refers to Chayavei Lavim and is less likely to refer Chayavei Kerisus. It may be possible, however, to find a case in which a Chiyuv Kares <i>does</i> have Zikah, and a case in which a Chiyuv Lav does <i>not</i> have Zikah. For example, <b>TOSFOS</b> (2a, DH va'Achos) writes that a woman who falls to Yibum when she is a Nidah should be obligated to do neither Yibum nor Chalitzah, even though Kidushin does take effect with a Nidah. Similarly, Tosfos (11b, DH Tzarasah) considers Sotah and Machzir Gerushaso to be full-fledged 'Arayos' (according to one stage of the Gemara's discussion) even though Kidushin takes effect with them (see Insights to Yevamos 11:2).
</p><p>
Likewise, Tosfos (16a, DH Bnei Tzaros, and 18b, DH Shomeres) mentions situations in which Chayavei Kerisus <i>do</i> have Zikah even though Kidushin does not take effect with them. Similarly, Tosfos earlier (9a, DH v'Harei) suggests that Chayavei Lavin should have Zikah even according to Rebbi Akiva who maintains that Kidushin does take effect with Chayavei Lavin.
</p><p>
Tosfos apparently follows the logic he expresses elsewhere. Tosfos (3b, DH Lo Ta'aseh) writes that the Mitzvah of Yibum <i>overrides</i> the prohibition of 'Eshes Ach' (and not that 'Eshes Ach' is <i>permitted</i> in a situation of Yibum). This means that the prohibition of 'Eshes Ach' is removed only at the moment of Yibum and not at the moment the brother dies childless (see Insights to Yevamos 7:1, and Rashi 52a, DH Nasan). According to Tosfos, <i>every</i> Yevamah is forbidden by an Isur Kares (i.e. 'Eshes Ach'), and yet Zikah takes effect with her!
</p><p>
(b) The <b>RASHBA</b> (end of 20b), <b>RAMBAN</b>, and other Rishonim clearly explain that <i>because</i> Kidushin does not take effect with Chayavei Kerisus, Zikah also does not take effect and thus there is no need for Chalitzah. The Rashba and others indeed disagree with the assertions of Tosfos mentioned above, because they maintain that when there can be no Kidushin there is no Zikah, and when there can be Kidushin there is Zikah. Similarly, these Rishonim disagree with Tosfos about the status of a Yevamah before Yibum. They maintain that the Isur of 'Eshes Ach' is removed at the moment of the brother's death and not at the moment the act of Yibum is performed. (M. Kornfeld)
</p><p>


<font><b>3) DOES YIBUM DONE UNLAWFULLY CREATE KIDUSHIN 'B'DI'EVED'?</b></font><b>
<br>QUESTION:</b> The Gemara assumes that when a Lo Ta'aseh prevents a man from doing Yibum with his brother's widow, if the brother transgresses the Lo Ta'aseh and does Yibum with the woman who is prohibited to him, b'Di'eved the Yibum does not take effect and she still needs Chalitzah.
</p><p>
Why does Yibum not take effect b'Di'eved? After all, when one marries a woman who is prohibited to him with a Lo Ta'aseh, the Kidushin takes effect. Why should Yibum not take effect as well, b'Di'eved?
</p><p>
Even if the Torah specifically excludes Chayavei Lavim from the obligation of Yibum (just as it excludes an Aylonis and 'Eshes Achiv she'Lo Hayah b'Olamo' from Yibum) and thus it is not possible for him to do an act of Yibum, nevertheless at least <i>Kidushin</i> (Kidushei Bi'ah) should take effect when the brother does Yibum with her (and thus she should need a Get from him). The reason why Kidushin does not take effect with the Yevamah in the cases of Aylonis and 'Eshes Achiv she'Lo Hayah b'Olamo' is that these women are prohibited with the Isur of 'Eshes Ach.' In contrast, in the case of Chayavei Lavim the Torah says that Chalitzah <i>is</i> done, and whenever Chalitzah applies the Isur of 'Eshes Ach' is removed (as the Gemara says on 10b; see Insights there). Therefore, when one does Yibum with such a woman there should be no Isur of 'Eshes Ach' and the Kidushin should take effect.
</p><p>
<b>ANSWERS:</b> The <b>SHA'AR HA'MELECH</b> (6:11) and <b>AVNEI MILU'IM</b> (174) discuss this question at length. They refer to two primary approaches in the Rishonim as to why Kidushin does not take effect when a man does Yibum with a woman who is prohibited to him with a Lo Ta'aseh. (These two approaches depend on the two approaches mentioned in Insights to Yevamos 20:2, 7:1, and 10:1.)
</p><p>
(a) <b>RASHI</b> (52a, DH Nasan Lah) writes that in a normal case of Yibum, during the period of Zikah the Yevamah is prohibited to the brother because of 'Eshes Ach.' The Torah gives him a special allowance to do Yibum, at which moment the Mitzvah of Yibum overrides the Isur of 'Eshes Ach.' Until he does Yibum, however, the Isur remains in force. This explains why one cannot betroth a Yevamah with Kidushin; she is prohibited to him as 'Eshes Ach' and the Kidushin cannot take effect.
</p><p>
With regard to Chayavei Lavim, the Torah says that a man may not live with a Yevamah who is prohibited to him because of a Lo Ta'aseh, and thus he has no active obligation to do Yibum with her (the Torah proscribes it). Therefore, the Isur of 'Eshes Ach' is not pushed aside for Yibum and the woman remains an 'Eshes Ach.' Since she is prohibited to him with an Isur Kares of 'Eshes Ach,' he cannot marry her even with normal Kidushin. In other words, the Lav causes the Isur Kares of 'Eshes Ach' not to be removed, and thus Kidushin cannot take effect. (When the Gemara (10b) says that the Isur of 'Eshes Ach' is removed by Chalitzah, it means that the Isur is removed only at the <i>moment that Chalitzah is done</i> but not prior to it.)
</p><p>
(b) The <b>RASHBA</b> (end of 41a) writes that the Isur of 'Eshes Ach' is removed as soon as the woman falls to Yibum. From that moment onward, none of the other brothers are prohibited to her because of 'Eshes Ach.' Accordingly, it cannot be the Isur of 'Eshes Ach' that prevents the Kidushin from taking effect. However, Kidushin still does not take effect; if the brother is Mekadesh the Yevamah with Kesef or with a Shtar, only a Kidushin d'Rabanan (called 'Ma'amar') takes effect, but not a Kidushin d'Oraisa. The Gemara in Kidushin (14a) cites a Beraisa which explains that the verse, 'Yevamah Yavo Aleha' -- 'Her Yavam shall come upon her' (Devarim 25:5), teaches that Kidushin performed with Kesef and Shtar is not valid when done with a Yevamah. The marital bond of Yibum can be formed by being Mekadesh the Yevamah in only one way -- with Bi'ah, and not in the other two ways (Kesef and Shtar) normally used to effect Kidushin. This explains why Kidushin cannot take effect with Chayavei Lavim -- Kidushin never takes effect in a situation of Yibum.
</p><p>
(The <b>MAHARSHA</b> (20b), however, seems to understand that Kidushin <i>can</i> take effect with a Yevamah. Similarly, <b>RABEINU AVRAHAM MIN HA'HAR</b> (20a) implies that Bi'ah with a Yevamah who is prohibited with a Chiyuv Lav effects Kidushin even though it does not remove the Zikah. In such a case, the woman will be bonded to her Yavam through <i>both</i> Kidushin and Zikah, and thus she will need both Chalitzah and a Get (mid'Oraisa) to break the bond with the Yavam. See <b>SHI'UREI RAV NACHUM</b> (Pertzowitz) who discusses the opinion of Rabeinu Avraham Min ha'Har at length.)
</p><p>


<font><b>4) DOES YIBUM DONE UNLAWFULLY TAKE EFFECT 'B'DI'EVED'?</b></font><b>
<br>QUESTION:</b> The Gemara (20a) initially derives from the verse, 'Yevimto,' that Chayavei Lavim are exempt from Yibum and are obligated to do Chalitzah. This Derashah implies that they are prohibited mid'Oraisa from doing Yibum.
</p><p>
Rava disproves the Gemara's initial assumption. If the Torah prohibits Chayavei Lavim from doing Yibum, then if one transgresses and does Yibum with a woman who is prohibited to him with a Lav, the Yibum should <i>not</i> take effect and the Yavam should not be Koneh her. The Beraisa, however, states that b'Di'eved one who transgresses and does Yibum with such a woman <i>is</i> Koneh her. Rava therefore concludes that the prohibition against doing Yibum with Chayavei Lavim is only mid'Rabanan. The Rabanan prohibited Yibum with Chayavei Lavim lest the Yavam live with the prohibited woman a second time, after he has already fulfilled the Mitzvah of Yibum ('Bi'ah Rishonah Atu Bi'ah Sheniyah.'
</p><p>
Rava then rescinds his view and asserts that the Torah does not apply the principle of 'Aseh Docheh Lo Ta'aseh' to obligate one to do Yibum with Chayavei Lavim. The principle of 'Aseh Docheh Lo Ta'aseh' does not apply in such a case because it is possible to fulfill the Aseh without transgressing the Lo Ta'aseh -- such as by doing Chalitzah instead of Yibum. Whenever it is possible to avoid transgressing the Lo Ta'aseh, the Mitzvas Aseh does not override the Lo Ta'aseh. Rather, it must be that mid'Oraisa there is no obligation of Yibum with Chayavei Lavim.
</p><p>
The Gemara proceeds to refute Rava's revised opinion and to support his original opinion that Chayavei Lavim <i>are</i> obligated mid'Oraisa to do Yibum and it is prohibited only mid'Rabanan. The Gemara quotes the Beraisa which says that if the brother transgresses and does Yibum with the woman, b'Di'eved he is Koneh her and the Yibum is effective. If the Yibum is effective b'Di'eved, it must be that mid'Oraisa there <i>is</i> an obligation to do Yibum (because of 'Aseh Docheh Lo Ta'aseh'), and the prohibition against doing Yibum with Chayavei Lavim is only mid'Rabanan.
</p><p>
However, Rava himself relied on this Beraisa when he refuted the opinion that mid'Oraisa there is no Yibum for Chayavei Lavim. How, then, can he now advocate the opposite view which the Beraisa disproves? (<b>TOSFOS</b> DH Meisivei)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> points out that the Gemara's way of expressing that Rava changed his mind is, 'Rava said -- and some say Rav Ashi said....' These words imply that the Gemara is unsure who said that there is no Yibum for Chayavei Lavim even mid'Oraisa (because the Aseh does not override the Lo Ta'aseh in this case). If it was Rava who quoted the Beraisa earlier to refute the opinion that there is no Yibum mid'Oraisa, then he could not be the one who said that the Aseh does not override the Lo Ta'aseh; it must have been Rav Ashi who ruled this way. If, on the other hand, Rava is the one who said that the Aseh does not override the Lo Ta'aseh, then the discussion until now must have been the words of Rav Ashi and not Rava (even though the Gemara does not mention Rav Ashi's name earlier). The Gemara here means that both statements could not have been said by the same person.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> (in Kuntrus Acharon) suggests a simple answer for why Rava thought that the Aseh does not override the Lo Ta'aseh since it is possible to do Chalitzah and avoid the Lo Ta'aseh, while at the same time Rava was not bothered by the Beraisa which says that the Yibum is effective b'Di'eved:
</p><p>
The Gemara initially understands that the Aseh does not override the Lo Ta'aseh because the verse says 'Yevimto,' which teaches that Chayavei Lavim do not do Yibum. If the verse itself says that Chayavei Lavim do not do Yibum, then it is obvious that there is no Mitzvah of Yibum even b'Di'eved; the Torah never gave a Mitzvah of Yibum to Chayavei Lavim. Therefore, if the brother does Yibum his act is meaningless (as explained in the beginning of the previous Insight).
</p><p>
However, according to Rava (after he changed his mind), the verse does not relate to Chayavei Lavim and Yibum. Rather, it is logical that Chayavei Lavim do not do Yibum, because the Aseh does not override the Lo Ta'aseh when one can fulfill both the Aseh and the Lo Ta'aseh by doing Chalitzah instead of Yibum. Since the verse does not say that Yibum is <i>not</i> done by Chayavei Lavim, perhaps the Mitzvah of Yibum <i>does</i> apply to Chayavei Lavim, but there is merely an Isur Lav which prevents one from fulfilling the Mitzvah l'Chatchilah. (The laws of Yibum <i>do</i> apply to him, but an Isur Lav prevents Yibum from being done.) Consequently, if he transgresses the Lav and does Yibum, b'Di'eved the Kinyan of Yibum takes effect because the law of Yibum does not exclude Chayavei Lavim.
</p><p>
The Gemara does not accept this argument. It asserts that even according to Rava's reasoning, if Yibum was done it should <i>not</i> be effective b'Di'eved, because the Isur Lav which prevents one from doing Yibum l'Chatchilah should also prevent the Yibum from taking effect b'Di'eved. The Gemara considers it logical that the Torah never meant to include Chayavei Lavim in the law of Yibum if the Lo Ta'aseh prevents one from doing the act. (The Pnei Yehoshua suggests another reason for why the Gemara rejects Rava's view.)
</p><p>
Rava's opinion is now clear. He maintains that the Beraisa which says that Yibum is effective b'Di'eved does not contradict his statement that Yibum with Chayavei Lavim is prohibited mid'Oraisa.
</p><p>
The approach of the Pnei Yehoshua may resolve a difficulty with the words of Rashi elsewhere. <b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas here) points out that Rashi in a number of places (Yevamos 84a, DH v'Ha Kulei; Sanhedrin 53a, DH Isur Mitzvah) seems to side with the view that <i>mid'Oraisa</i> Chayavei Lavim may not do Yibum, in accordance with the first opinion in the Gemara and as Rava says in his revised opinion. This view of Rashi is implicit in a number of other places as well (9a, DH v'Harei Isur Mitzvah, and in the Mishnah, 20a, DH Gerushah). 
</p><p>
Why does Rashi side with that view? The Gemara here clearly concludes that Chayavei Lavim are prohibited from doing Yibum only <i>mid'Rabanan</i>. The Gemara reiterates this ruling in Sanhedrin (19a). Moreover, the Gemara proves that Yibum for Chayavei Lavim cannot be prohibited by the Torah from the Beraisa which states that b'Di'eved, the Yibum is effective. Why does Rashi side with the Havah Amina of the Gemara?
</p><p>
Rashi may understand that although the Gemara here and in Sanhedrin says that the prohibition against Yibum with Chayavei Lavim is only mid'Rabanan, other sources indicate that Chayavei Lavim are prohibited <i>mid'Oraisa</i> from doing Yibum. Therefore, Rashi concludes that this matter is the subject of debate among the Sugyos. The Sugyos which maintain that Yibum with Chayavei Lavim is prohibited even mid'Oraisa follow Rava's <i>conclusion</i> that the Aseh does not override the Lo Ta'aseh (since it is possible to do Chalitzah instead). The Beraisa does not contradict this opinion because it is possible that Yibum is effective b'Di'eved, as the Pnei Yehoshua explains. (According to the explanation mentioned in Insights to Yevamos 20:1, this is also the approach of the Gemara at the end of 20a. Rava does not reject that approach when he cites the Beraisa which says, 'Im Ba'alu Kanu.')
</p><p>
What are Rashi's sources that support Rava's conclusion (that Yibum may not be done with Chayavei Lavim even mid'Oraisa)? 
</p><p>
1. Rashi (DH Teyuvta) writes that the opinion that Yibum with Chayavei Lavim is prohibited only mid'Rabanan contradicts the view of Reish Lakish who says that when it is possible to fulfill both the Aseh and the Lo Ta'aseh, the Aseh does not override the Lo Ta'aseh. The Acharonim ask why Rashi writes this if the Gemara -- on the very next page (21a) -- reconciles this opinion with the view of Reish Lakish. The Gemara there says that the Chalitzah is not a bonafide fulfillment of the primary Mitzvah of Yibum, and thus it cannot be said to take the place of Yibum. Rashi's text of the Gemara apparently did not include those words, as he writes that the Gemara refutes the view of Reish Lakish. Rashi understands that the Gemara never reconciles the opinion of Reish Lakish that, mid'Oraisa, Chayavei Lavim do not have Yibum.
</p><p>
If the Gemara's conclusion here -- that Yibum for Chayavei Lavim is prohibited only mid'Rabanan -- is correct, one would expect the Gemara to reject the view of Reish Lakish and not quote him again elsewhere. However, the fact that the Gemara quotes his opinion in many places implies that the Gemara elsewhere <i>supports</i> his view (that Yibum for Chayavei Lavim is prohibited mid'Rabanan) and disagrees with the conclusion of the Gemara here (that Yibum for Chayavei Lavim is prohibited mid'Oraisa).
</p><p>
2. A number of Sugyos in Yevamos support the view that Yibum for Chayavei Lavim is prohibited mid'Oraisa. The Gemara (9a) says that according to Rebbi Akiva who rules that Kidushin does not take effect for Chayavei Lavim, not only do they not have Yibum but they also exempt their Tzaros from Yibum, just as an Ervah does. <b>TOSFOS</b> (9a, DH v'Harei) asks that until now the Gemara has taught that even an Ervah herself should do Yibum if an Aseh can override a Lo Ta'aseh which has Kares. Accordingly, Chayavei Lavim -- which do not have Kares -- should certainly do Yibum because of 'Aseh Docheh Lo Ta'aseh,' regardless of their status as Ervah according to Rebbi Akiva! (See Insights to Yevamos 20:2 and 12:1.)
</p><p>
Perhaps Rashi infers from there that according to the Gemara's conclusion, the Aseh of Yibum does not override any Lo Ta'aseh, and therefore Chayavei Lavim are treated like any other Ervah.
</p><p>
3. The Gemara (6a) mentions that even if an Aseh overrides a Lo Ta'aseh which has Kares, the Aseh of Yibum does <i>not</i> override such a Lo Ta'aseh because the obligation of Yibum can be discharged through Chalitzah. (This is how Rashi understands the words 'Hechsher Mitzvah' there; see Insights to Yevamos 6:1.)
</p><p>
Tosfos there asks that this is not true. The Gemara here (20b-21a) says that Chalitzah is <i>not</i> considered an equal alternative to Yibum; the primary Mitzvah is Yibum, as the Gemara concludes (21a). Nevertheless, the Aseh of Yibum still overrides the Lo Ta'aseh even though one can avoid the Lo Ta'aseh by doing Chalitzah.
</p><p>
Rashi, in contrast, maintains that 'Hechsher Mitzvah' means that if one can avoid the Lo Ta'aseh by doing Chalitzah instead of Yibum, the Aseh of Yibum does <i>not</i> override the Lo Ta'aseh. According to Rashi, the Gemara there (6a) accepts the argument of Rava that Chalitzah is not considered an equal alternative to Yibum, and thus Yibum is not comparable to an ordinary case of 'Aseh Docheh Lo Ta'aseh.' This serves as another source that Yibum is not a case of 'Aseh Docheh Lo Ta'aseh.'
</p><p>
4. The final source is the Gemara earlier (11b) which teaches a Kal v'Chomer: if a man is prohibited from remarrying the woman he divorced if she married another man (who then died or divorced her), then certainly that man's brother should be prohibited from marrying her, and perhaps even her Tzarah. This Kal v'Chomer is puzzling. A man is prohibited from remarrying his divorced wife with an Isur Lav of 'Machzir Gerushaso.' How can the Kal v'Chomer teach that the Yavam should not be able to do Yibum? Even if the Yavam is prohibited to the woman with an Isur Lav, the principle of 'Aseh Docheh Lo Ta'aseh' should apply and permit him to do Yibum (and certainly the Tzarah should do Yibum, since the Lav does not affect her). (<b>RASHASH</b>)
</p><p>
According to Rashi, however, who says that the Torah prohibits Chayavei Lavim from doing Yibum, the Gemara's logic is clear. Since the woman is prohibited to her husband with a Lav, she is also prohibited to her Yavam with the power of a Lav, and thus there is no Yibum. (Since this Lav has an element of 'Ervah,' there exists the possibility that even her Tzarah will be exempt from Yibum.)
</p><p>
Based on these sources, Rashi may have concluded that most Sugyos reject the conclusion of the Gemara here and instead accept Rava's argument that the Aseh of Yibum does not override a Lo Ta'aseh, and if Yibum is done nonetheless, b'Di'eved it is effective (because the Torah does not explicitly exclude Chayavei Lavim from Yibum). 
</p><p>
(This approach may be taken a step further. Even if the Torah explicitly excludes Chayavei Lavim from Yibum with the verse 'Yevimto,' presumably the reason <i>why</i> it excludes them is that Yibum cannot override a Lo Ta'aseh since the Aseh can be fulfilled through Chalitzah. If this would not be the reason, then this verse would serve as a source that an Aseh <i>never</i> overrides a Lo Ta'aseh, as the Rashba indeed asks based on the Gemara earlier (6a). It must be that the Torah excludes Chayavei Lavim from Yibum specifically to teach the principle that whenever one is able to fulfill the Aseh without transgressing the Lav, the Aseh does not override the Lav. Hence, the verse does not exclude Chayavei Lavim from Yibum entirely; rather, it teaches that an Aseh which can be fulfilled without transgressing the Lo Ta'aseh does not override a Lo Ta'aseh. Accordingly, if one transgresses and performs Yibum with Chayavei Lavim, the Yibum takes effect b'Di'eved, as the Pnei Yehoshua suggests according to Rava's conclusion. Based on this approach, the intention of the Sugya may be as follows: Rava initially thought that the verse excludes Chayavei Lavim from Yibum entirely. He later changed his mind and suggested that the verse teaches only that an Aseh which can be fulfilled without transgressing the Lav does not override the Lav.)
</p><p>
This also explains the comment of Rashi (end of 20a) in which he writes that the reason why Chalitzah is done with Chayavei Lavim is that 'Karinan Bei 'la'Kachas'' -- and since, b'Di'eved, 'Lakachas' applies to Chayavei Lavim (that is, Kidushin takes effect b'Di'eved), the obligation to do Chalitzah applies. Why does Rashi write that Yibum with Chayavei Lavim is effective b'Di'eved if the Gemara throughout the next page says that if Yibum is prohibited mid'Oraisa with Chayavei Lavim, it does not take effect even b'Di'eved? (See end of Insights to Yevamos 20:1.)
</p><p>
The answer is that Rashi there follows the opinion of Rava at the end of the Sugya, that the Aseh of Yibum does not override a Lo Ta'aseh since it is possible to do Chalitzah instead (as explained above, Insight 1:b). This explains why Rashi says that b'Di'eved if one did Yibum, it is effective. (M. Kornfeld) (With regard to the intention of Rashi on Daf 84a, see Insights to Yevamos 84:2.)
</p><p>
(It should be noted that Rashi's words in Sanhedrin (53a, as cited above) are particularly difficult to understand. Rashi first writes that the Torah exempts Chayavei Lavim from Yibum. In his very next comment, Rashi explains that although the Torah obligates them to do Yibum, the Rabanan prohibited them from doing Yibum because of 'Bi'ah Sheniyah.' (See <b>MAHARSHA</b> there who suggests a somewhat forced answer to reconcile the apparent contradiction.) It seems that the two comments of Rashi there reflect two distinct approaches to the Sugya, and that Rashi at one point revised his explanation and added the second approach. Both explanations were included in our edition of Rashi, even though Rashi rejected one of them. Another example of such a phenomenon appears later in Yevamos (23b) -- see Rashi DH Mai Shena and DH Choltzos; see Tosfos and Rishonim there. See also Appendix to Insights to Maseches Eruvin, where this phenomenon in the text of Rashi is discussed.)
</p><p>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A 'KOHEN' 'GADOL' THAT DOES 'YIBUM' WITH A WIDOW</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (R. Yochanan or R. Elazar):</font></b> If a Kohen Gadol did Yibum 
          with a widow, the Tzarah is exempted.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (The other of R. Yochanan and R. Elazar):</font></b> She is not 
          exempted.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If she was widowed from marriage all agree that she does 
          not exempt the Tzarah, for an Aseh does not override an 
          Aseh and a Lav;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a widow from Kidushin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One opinion says that she exempts the Tzarah, 
               because an Aseh overrides a Lav;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The other opinion says that she doesn't exempt the 
               Tzarah. The Aseh doesn't override the Lav, since 
               Chalitzah could be done.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> If they did Yibum, he acquires her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  This shows that the Aseh overrides the Lav. It refutes 
          the opinion that the Tzarah is not exempted.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Suggestion:</font></b> This refutes Reish Lakish (who says that when 
          it is possible to fulfill both, the Aseh doesn't override 
          the Lav).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> No. Chalitzah is not considered a fulfillment 
          of Yibum.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE SOURCE FOR 'SHENIYOS'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rava):</font></b> Where does the Torah hint at Sheniyos?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rava):</font></b> 'Kol ha'To'evos ha'El (harsh)' implies 
          that other abominations are lighter, i.e. Sheniyos.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that 'ha'El' means 
               harsh?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'He took Eilei (the strong ones) of the 
               land'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Suggestion:</font></b> Rava disagrees with R. Levi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Levi):</font></b> The punishment for unjust measures is 
               harsher than for Arayos.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding measurements it says 'ha'Eleh'. Regarding 
               Arayos it says 'ha'El'; the former is harsher.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> It also says 'ha'Eleh' regarding Arayos!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> That teaches that there is Kares for Arayos, 
               but not for unjust measures.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why are measures stricter?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> One can do proper Teshuvah for Arayos (if he 
               did not father a Mamzer), but not for having cheated 
               with unjust measures (he does not know to whom to 
               return the money).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (Rav Yehudah):</font></b> Sheniyos are hinted at in 'He 
          made handles, investigated and enacted many parables'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ula):</font></b> Before Shlomo, the Torah was like a basket 
               without handles (safeguards against sin). Shlomo 
               made handles for it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #3 (R. Oshaya):</font></b> 'Go away; do not pass through 
          (increase Isurim mid'Rabanan to keep people far from 
          transgressing the Torah itself). Veer away, then pass.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Rav Ashi):</font></b> There is a parable for R. Oshaya's teaching. 
          If a man has an orchard and he guards it from the 
          outside, it is totally guarded. If he guards it from the 
          inside, what is in front of him is guarded, what is in 
          back of him is not guarded.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> This parable is inaccurate! If one guards from 
          the inside, at least what is in front of him is guarded. 
          Without Sheniyos, people would stumble in Ervah itself!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #4 (Rav Kahana):</font></b> 'U'Shmartem Es Mishmarti' - make 
          something to guard for My guarding.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> If so, Sheniyos are mid'Oraisa!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Rav Yosef):</font></b> It is mid'Oraisa, but Chachamim 
          explained it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Objection (Abaye):</font></b> Chachamim explain the entire Torah!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Retraction:</font></b> Rather, Sheniyos are mid'Rabanan; the verse 
          is only an Asmachta.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH ARE THE 'SHENIYOS'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> These are the Sheniyos: a man is forbidden to 
          his two grandmothers (the mothers of his mother and 
          father), the wives of his two grandfathers, the wives of 
          his father's maternal brother and his mother's paternal 
          brother, and the daughters-in-law of his son and 
          daughter;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  A man may marry the (ex-)wives of his father-in-law and 
          stepson;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  He may not marry his stepson's daughter. A stepson may 
          marry the (ex-)wife or daughter of his stepfather.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> His stepson's wife says to him 'I am permitted to 
               you, but my daughter is forbidden to you.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> The Torah forbids his stepson's daughter! '(Do 
          not marry) the daughter of her (your wife's) son or 
          daughter...'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Indeed, the Torah forbids her. The Tana wanted to 
          teach 'His stepson's wife says to him, I am permitted to 
          you, my daughter is forbidden to you'. I.e. even though 
          her daughter is forbidden mid'Oraisa, Chachamim did not 
          decree against her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To teach this saying in the Seifa, the Tana needed 
               to teach the Isur of the stepson's daughter in the 
               Reisha, even though it is not Sheniyos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> His father-in-law's wife can also say that 'I 
          am permitted to you, but my daughter is forbidden to 
          you', since she is Achos Ishto!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> The daughter of his stepson is permanently 
          forbidden to him, so it was taught. His father-in-law's 
          wife is forbidden only in the life of his wife, so it was 
          not taught.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>EXTENDED 'SHENIYOS'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav):</font></b> In most cases, when a relative is forbidden, 
          Chachamim forbade all similar relatives in prior or later 
          generations. There are four relatives for which the Isur 
          does not extend.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Rav was sure about three of them - the wives of one's 
          mother's paternal brother and his father's maternal 
          brother, and his daughter-in-law;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Ze'iri added the wife of his mother's father.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman bar Yitzchak):</font></b> A way to remember this 
               is (Ze'iri added) 'what is (a generation) above (his 
               mother's paternal brother's wife, one of the 
               Sheniyos of) Rav.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't Rav list this case?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> It can be confused with the wife of the father's 
          father. (We are adamant to forbid all generations above 
          the father's father's wife, lest people permit the 
          father's wife, which is an Isur Torah.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ze'iri is not concerned for this. A man is frequent 
               in his father's house, so he will not err. He is 
               infrequent in his mother's house, so he may err.
<br>
<br>

sjt:
<font><b>1) CONFUSING ONE'S MATERNAL GRANDMOTHER WITH ONE'S PATERNAL GRANDMOTHER</b></font><b>
<br>QUESTION:</b> Zeiri and Rav disagree about whether 'Eshes Avi Imo' -- the wife of the father of one's mother -- has a 'Hefsek' or not. Is that relationship prohibited for only that generation (the wife of the father of one's mother) or is it prohibited for preceding generations as well (such as the wife of the father of one's grandmother)? Zeiri maintains that 'Eshes Avi Imo' is not prohibited in any other generation. Rav maintains that the prohibition extends to earlier generations.
</p><p>
Rav explains that although there is no Ervah d'Oraisa involved in the first generation (since his mother cannot have a wife), nevertheless the Chachamim decreed that 'Eshes Avi Imo' is prohibited for all prior generations because of the existing prohibition of 'Eshes Avi <i>Aviv</i>,' the wife of the father of one's <i>father</i>, which <i>does</i> have an Ervah d'Oraisa in the first generation ('Eshes Aviv,' the wife of one's father). Since the wife of his mother's father and the wife of his father's father are easily confused, the Chachamim gave them the same status and prohibited both.
</p><p>
Zeiri disagrees and says that they are not easily confused. A person spends far more time with his father's family than with his mother's family, and thus he will not confuse the two.
</p><p>
According to Zeiri's view that one does not confuse his maternal relatives with his paternal relatives, why did the Chachamim prohibit one's father's mother (his paternal grandmother) without a 'Hefsek' for all previous generations? <b>RASHI</b> (DH v'Eshes Achi ha'Av) explains that although there is no woman in the first generation that corresponds to the relation of one's father's mother, nevertheless the Rabanan prohibited this relation for all generations because she is confused with the grandmother on the maternal side, one's mother's mother. Everyone, including Zeiri, agrees with this. Why, then, is Zeiri not concerned that one will confuse the maternal and paternal sides in the case of 'Eshes Avi Imo,' the wife of one's mother's father?
</p><p>
<b>ANSWER: RASHI</b> (DH Hasam) alludes to the answer to this question. Rashi writes that because a person spends far more time with his father's family he considers the relatives on that side to be 'more closely related' to him than those on the maternal side. Thus, there is more reason to prohibit a relative on one's paternal side.
</p><p>
This is the reason why, according to Zeiri, the Chachamim did not prohibit the maternal side even though the paternal side is prohibited. Accordingly, the wife of one's mother's father is not prohibited. The Gemara earlier discusses the opposite situation -- prohibiting the paternal side because the maternal side is prohibited. If one's mother's mother is prohibited, then the Chachamim should also prohibit one's father's mother because the paternal side is always treated more stringently due to the higher degree of closeness one feels with his relatives on the paternal side.
</p><p>
According to Rashi, this is the intent of the Gemara: the fact that one spends more time with his paternal relatives is more reason to prohibit them to him. This approach supports the words of the <b>RAMBAM</b> and <b>IBN EZRA</b> (quoted by the <b>RAMBAN</b> to Vayikra 18:6) that the prohibition of Arayos is intended to prohibit a man from marrying the women with whom he associates and interacts most often so that he not act in the way of animals who mate with all of the females around him. (M. Kornfeld)
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> A daughter-in-law is a Torah Isur! (Why did Rav 
          list it among Sheniyos?)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Correction:</font></b> Rather, he refers to the daughter-in-law of 
          his son.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> His son's daughter-in-law is not a limited 
          Isur!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One's daughter-in-law is Ervah. His son's 
               daughter-in-law is a Sheniyah. This applies to the 
               daughter-in-law of his son, and of his son's son, 
               and of his son's son's son for all generations.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Correction:</font></b> Rather, he refers to his daughter's 
          daughter-in-law.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Rav Chisda, citing R. Ami):</font></b> The daughter-in-law was only 
          prohibited because of the daughter-in-law.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rav Chisda:</font></b> Before I was a Chacham, astrologers told me 
          that I would be a Chacham. I reasoned that if I will be a 
          great Chacham, I will explain R. Ami's teaching, If I 
          will be a teacher of children, I will ask others to 
          explain it.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> The daughter's daughter-in-law was 
          forbidden only due to (concern lest one marry) the son's 
          daughter-in-law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Abaye):</font></b> We are concerned about cases like Bar 
               Tzisai's daughter-in-law (both his son and daughter 
               had daughters-in-law, and they could be confused).
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>WHICH WOMEN WERE DECREED 'SHENIYOS'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What is the law of the wife of the mother's 
          maternal brother?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (The Torah forbids the wife of the father's paternal 
               brother.) We decreed about the wives of the father's 
               maternal brother and the mother's paternal brother, 
               which have a paternal side. When there is no 
               paternal side, we do not decree;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we decree in every case?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Safra):</font></b> The Isur when there is one paternal 
          side is a decree. We do not decree to guard a decree!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection (Rava):</font></b> In many cases we decrees to guard a 
          decree!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> His mother is Ervah, and his mother's mother is a 
               Sheniyah. We decree about his father's mother due to 
               the mother's mother!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because they are all called 
                    grandmothers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> His father's wife is Ervah, and his father's 
               father's wife is a Sheniyah. We forbid his mother's 
               father's wife due to his father's father's wife.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because they are all called wives of 
                    grandfathers.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The wife of his father's paternal brother is Ervah; 
               the wife of his father's maternal brother is a 
               Sheniyah. We forbid the wife of his mother's 
               paternal brother due to the wife of the father's 
               maternal brother.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because they are all wives of his 
                    uncle.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  The question remains, is the wife of his mother's 
          maternal brother forbidden?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Yehudah bar Shila):</font></b> In Eretz Yisrael, they 
          say that whenever the female is Ervah, they decreed that 
          the wife of the corresponding male is a Sheniyah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> This is not always true! A 
               mother-in-law is Ervah, but a father-in-law's wife 
               is permitted (after she is divorced or widowed)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The daughter of his mother-in-law is Ervah, but the 
               wife of his mother-in-law's son is permitted!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The daughter of his father-in-law is Ervah, but the 
               wife of his father-in-law's son is permitted!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> His stepdaughter is Ervah, but his stepson's wife is 
               permitted!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The daughter of his stepdaughter is Ervah, but the 
               wife of his stepdaughter's son is permitted!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Conclusion:</font></b> Surely, Rav Yehudah bar Shila came to 
               include the wife of the mother's maternal brother 
               (she is a Sheniyah, for she corresponds to the 
               mother's maternal sister, who is Ervah).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Why is this case different (than Rava's cases 
          in which they did not decree)?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> This case involves only one Kidushin. Rava's 
          cases involve two acts of Kidushin.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Rav Mesharshiya):</font></b> Are the paternal 
          grandfather's sister and his brother's wife Sheniyos?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the generation below them is Ervah, we decree;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since these are distant generations, we do not 
               decree!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (Rav Papi):</font></b> The Mishnah lists the Sheniyos, and 
          omits these cases!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection:</font></b> The Tana omitted cases.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> What else did he omit? (Surely, he would not 
          omit just these!)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> He also omitted the Sheniyos of R. Chiya (Daf 
          40b).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  Ameimar permitted the cases Rav Mesharshiya asked about.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  (Rav Hillel):</font></b> I saw the Sheniyos of Mar brei d'Ravna; 
          there are 16.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> These are the eight of our Mishnah, six 
               of R. Chiya, and the two in question!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection:</font></b> If so there are 17, for we concluded that the 
          wife of the mother's maternal brother is forbidden!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> These two are similar, so they are counted like 
          one.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW MANY 'SHENIYOS' ARE THERE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Rav Hillel:</font></b> In any case, I saw that they were listed as 
          forbidden!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rav Ashi:</font></b> If you saw that they were permitted, you would 
          not rely on it, since Mar brei d'Ravna didn't sign on it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  For the same reason, don't rely on what you saw that they 
          are forbidden.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Beraisa - d'Vei R. Chiya):</font></b> The third (generation 
          granddaughters) from his son and daughter and from his 
          wife's son and daughter are Sheniyos;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  The fourth (generation of grandmothers from his 
          father-in-law and mother-in-law are Sheniyos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (Ravina):</font></b> (The wife's great grandmother and 
          great granddaughter are Sheniyos.) Why does his wife 
          count towards the generations above her (so the fourth is 
          called a Sheniyah), but not towards the generations below 
          (the third is called a Sheniyah)?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> The generations above are forbidden 
          due to her, but the generations below are not (they are 
          forbidden due to him).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> The (great grand)son and (great grand)daughter 
          of his wife are forbidden because of her, yet she is not 
          counted among the generations!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Since we counted three generations below himself 
          and did not count himself, we also do not count her among 
          the generations below her.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> Do the Sheniyos of R. Chiya extend 
          to all generations?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #1 (Rav Kahana):</font></b> Since Rav (21a) listed only four 
          that do not extend, this shows that all others extend.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps Rav referred only to Sheniyos in that 
          Beraisa!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #2:</font></b> R. Chiya said that the third/fourth 
          generations below/above are forbidden. This shows that 
          past that are permitted!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps he forbids from the third/fourth and 
          onward.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question (Rava):</font></b> In Eretz Yisrael, they asked whether or 
          not Sheniyos apply to converts.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer (Rav Nachman):</font></b> Even Arayos are forbidden to 
          converts only so they will not say that they descended to 
          a lower Kedushah (e.g. 'before converting I was forbidden 
          to my mother. Now I am permitted!'). Certainly, there was 
          no decree of Sheniyos!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> Maternal brothers that converted should 
          not testify for each other. If they did, the testimony 
          stands. (Converted) paternal brothers may testify for 
          each other.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  (Ameimar):</font></b> Even maternal brothers may testify for each 
          other.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Question:</font></b> Why is this different than Arayos?
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  Answer:</font></b> Arayos pertain to every person (if we permit 
          Arayos to converts, perhaps Yisraelim will marry Arayos). 
          Testimony is received by Beis Din. (Beis Din will not 
          err; they know that) a convert is like a newborn.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ON WHOM DOES 'YIBUM' DEPEND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A brother from any place (i.e. mother) 
          obligates his brother's wife to do Yibum or Chalitzah. He 
          is like a brother in every respect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The only exceptions are a brother from a slave or 
               Nochris.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  A son from any place (i.e. mother) exempts his father's 
          wife from Yibum and Chalitzah. He is liable for striking 
          or cursing his father. He is like a son in every respect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The only exceptions are a son from a slave or 
               Nochris.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> What does 'from any place' come to 
          include?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Rav Yehudah):</font></b> It includes a Mamzer.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Objection:</font></b> Obviously, he is his brother!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that a Gezeirah Shavah 
          'Achvah-Achvah' from Yakov's sons teaches that just like 
          there they are proper, also Yibum depends on proper 
          brothers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that this is not so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Since a Mamzer exempts (his mother) from 
               Yibum, he also is Zokek (obligates his brother's 
               widow to do Yibum or Chalitzah).
<br>
<br>

sjt:
<font><b>1) ONE'S DAUGHTER'S DAUGHTER'S DAUGHTER</b></font><b>
<br>QUESTION:</b> The Gemara concludes its list of the Sheniyos l'Arayos with the six additional Sheniyos of Rebbi Chiya. His first four Sheniyos are the daughter of the third generation through one's son, the daughter of the third generation through one's daughter, the daughter of the third generation through one's wife's son, and the daughter of the third generation through one's wife's daughter.
</p><p>
<b>RASHI</b> (DH Shlishi and DH v'she'b'Bito) explains that these relations refer to the daughter of the son of one's son, the daughter of the son of one's daughter, the daughter of the son of one's wife's son, and the daughter of the son of one's wife's daughter.
</p><p>
According to Rashi's explanation, why does Rebbi Chiya discuss only the daughter of the <i>son</i> of one's son or daughter, and not the <i>daughter of the daughter</i> of one's son or daughter? Similarly, why does he mention only the daughter of the <i>son</i> of one's wife's son or daughter, but not the <i>daughter of the daughter</i> of one's wife's son or daughter? According to Rashi, Rebbi Chiya mentions only cases in which there is a woman at the end (obviously, since he is discussing a prohibited woman) and at the beginning, but not when there is a woman in the middle generation. Why does Rashi exclude all other cases of equivalent relatives from Rebbi Chiya's list of Sheniyos? (Indeed, the <b>RAMBAM</b> in Perush ha'Mishnayos and the <b>BARTENURA</b> include such cases in their list of the Sheniyos of Rebbi Chiya.)
</p><p>
<b>ANSWER: REBBI ELAZAR MOSHE HA'LEVI HOROWITZ</b> answers that the Gemara later questions whether or not the Sheniyos of Rebbi Chiya have a 'Hefsek' (they extend to further generations). In the case of the daughter of one's daughter's daughter, in which the first, second, and third generations are all women, it is obvious that the prohibition extends through the generations because both the first generation (one's daughter) and the second generation (his daughter's daughter) are Asur mid'Oraisa. Whenever there is any generation of a particular relation which is Asur mid'Oraisa, that relation is Asur throughout all of the generations (as Rashi explains on 21a, DH v'Eshes; see Chart there). Accordingly, if Rebbi Chiya refers to the daughter of one's daughter's daughter, the Gemara would not question whether it has a 'Hefsek' or not.
</p><p>
The question applies only in the case of the daughter of the <i>son</i> of one's daughter. In that case, although the first generation (his daughter) is Asur mid'Oraisa, the son in the middle interrupts the Isur; there is no case of an Ervah with a son in a middle generation, following a daughter, which is Asur mid'Oraisa. Hence, the Gemara asks whether or not the prohibition of the daughter of the son of one's daughter continues for ensuing generations.
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> He is his brother in every respect.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What does this teach?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> When the Mamzer dies, his brother inherits him, 
          and (if he is a Kohen) becomes Tamei to bury him.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Objection:</font></b> This is obvious, for he is his brother!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> A Kohen becomes Tamei 'Ki Im li'Sh'eiro ha'Karov 
          Elav' (only for his close relatives);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learned that 'She'eiro' refers to his wife;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Lo Yitama Ba'al b'Amav Lehechalo' teaches that a 
               husband does not become Tamei in every case. He 
               becomes Tamei for a permitted wife, but not for a 
               forbidden wife.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One might have thought that here also, he makes 
               himself Tamei for a proper brother, but not for an 
               illegitimate brother. The Mishnah teaches that this 
               is not so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The forbidden wife is destined to be 
               divorced. This does not apply to a brother who is a 
               Mamzer.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Except for a child from a slave or a Nochri.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  We learn from 'The woman (Shifchah) and her children will 
          be to her master' (i.e. the children are slaves like her. 
          Below (23a) we discuss children of a Nochris.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A CHILD THAT IS A 'MAMZER'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Any child exempts from Yibum and obligates his 
          brother's wife to do Yibum (or Chalitzah).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What does 'any' come to include?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (Rav Yehudah):</font></b> It includes a Mamzer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We read 'U'Ven <i>Ein</i> Lo' like 'Ayen' (investigate to 
               see if he any son, even a Mamzer).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mishnah):</font></b> He is liable for striking (or cursing) his 
          father.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> The Isur 'Do not curse a Nasi in your nation' 
          applies to one who acts like your nation. (Likewise, 
          there is no Isur to curse a wicked father, e.g. one who 
          fathered a Mamzer!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> We answer like Rav Pinchas said (elsewhere). The 
          case is, he repented.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Can he really repent for this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Shimon ben Menasya):</font></b> 'The crooked 
               cannot be fixed' applies to one who had Bi'ah with 
               Ervah and fathered a Mamzer!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> In any case, now he acts like your nation.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE PUNISHMENT FOR 'BI'AH' WITH A SISTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> One who has Bi'ah with his sister, who is the 
          daughter of his father's wife, is liable for both of 
          these Arayos;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Yosi bar Yehudah says, he is liable only for Achoso.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What is the Chachamim's reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer - Question:</font></b> Since it says 'Ervas Achoscha Vas 
          Avicha O Vas Imecha', why must it also say 'Ervas Bas 
          Eshes Avicha Moledes Avicha Achoscha Hi'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> This is Mechayev (one who has Bi'ah with a 
               sister born through wedlock) for both of these;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  R. Yosi b'Rebbi Yehudah expounds 'Achoscha Hi' - you are 
          liable only for this.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Chachamim use 'Achoscha Hi' to teach that one is liable 
          for a full sister.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that we do not punish from a Kal 
               va'Chomer. (Even though one is liable for a 
               half-sister, another verse is needed to be Mechayev 
               for a full sister.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  R. Yosi b'Rebbi Yehudah says, 'Achoscha' would suffice to 
          teach this. 'Hi' is extra, to teach that he is liable 
          only for this.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  Chachamim say, if not for 'Hi', one would think that 
          normally we punish from a Kal va'Chomer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why would the Torah have written 
               'Achoscha'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The Torah sometimes writes things which 
               could be learned from a Kal va'Chomer.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  R. Yosi b'Rebbi Yehudah says, if so 'Achoscha Hi' should 
          have been written in the other verse.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> What does R. Yosi b'Rebbi Yehudah learn from 
          'Bas Eshes Avicha'?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> This teaches that the mother could be married to 
          your father. It excludes a sister from a slave or 
          Nochris, for the mother could not be married to your 
          father.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps it excludes a sister from a woman 
          raped by his father!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Rejection - Contradiction (Rava):</font></b> 'Ervas Bas Bincha O Vas 
          Bitcha Lo Segaleh' implies that your wife's 
          granddaughters (who are not from you) are permitted. But 
          'Ervas Ishah u'Vitah Lo Segaleh Es Bas Benah v'Es Bas 
          Bitah...' forbids them!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Resolution (Rava):</font></b> If a man raped or enticed a 
               woman, he is permitted to her granddaughters that 
               are not from him. If he married a woman, all her 
               granddaughters are forbidden.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE 'ISUR' OF ONE'S SISTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps 'Bas Eshes Avicha' comes to exclude a 
          sister from Chayavei Lavin!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Papa):</font></b> Kidushin takes effect on Chayavei 
          Lavin:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> 'Ki Sihyena l'Ish Shtei Nashim ha'Achas 
               Ahuvah veha'Achas Senu'ah' - would one really think 
               that this affects inheritance?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the wives are 'beloved' and 'hated' 
               in their marriages (the latter is forbidden), and it 
               says Sihyena (there is Kidushin)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps 'Bas Eshes Avicha' comes to exclude a 
          sister from Chayavei Kerisos!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> 'Ervas Achoscha Vas Avicha O Vas Imecha 
          <i>Moledes Bayis O Moledes Chutz</i>' - the Torah calls her 
          your sister, whether or not your father may keep her 
          mother.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SISTERS FROM A SLAVE OR 'NOCHRIS'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps it comes to include a sister from a 
          Shifchah or Nochris!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rejection:</font></b> 'Bas <i>Eshes</i> Avicha' teaches that her mother 
          could be married to your father.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> (The verses do not specify what to include and 
          exclude.) Why do we include sisters from Chayavei Kerisos 
          and exclude sisters from a Shifchah or Nochris, and not 
          vice-versa?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> It is more reasonable to include children from 
          Chayavei Kerisos, since they can be married to others.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Objection:</font></b> To the contrary! A Shifchah or Nochris, if she 
          converts, can marry your father!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> When she converts, she is a new entity.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Chachamim exclude a sister from a Shifchah or Nochris 
          from 'The woman and her children will be to her master' 
          (they are slaves. At this point we are thinking that we 
          learn both from the verse.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  R. Yosi b'Rebbi Yehudah uses one verse to teach about a 
          Shifchah, and one for a Nochris. Both are needed:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there was a verse only about a Shifchah, we would 
               have thought that this is because slaves have no 
               lineage, but since a Nochris has lineage, her 
               daughter is considered a sister!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there was a verse only about a Nochris, we would 
               have thought that this is because she is not 
               commanded in Mitzvos; but since a Shifchah is 
               commanded in Mitzvos, her daughter is considered a 
               sister!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> We showed how Chachamim learn about a Shifchah. 
          What is their source regarding a Nochris?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We learn from a Shifchah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> We showed that one cannot learn from a 
               Shifchah!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (R. Yochanan):</font></b> '(...Do not marry your daughter to 
          a Nochri.) For He will veer your son away from Me' - your 
          son from a Yisraelis is called your son, but your son 
          from a Nochris is called her son. (Rashi - He, your 
          Nochri son-in-law, will veer <i>your</i> son, i.e. grandson. 
          Since this grandson is from a Yisraelis (your daughter), 
          he is called your son (he is a Yisrael). It does not say 
          (about the Reisha of the previous verse, 'Do not marry 
          your son to a Nochris') that she (your Nochris 
          daughter-in-law) will veer your son, for your grandson 
          from a Nochris is not called your son (he is a Nochri). 
          Tosfos (Kidushin 68b) says that 'He will veer your son' 
          refers to the Reisha. He, your son's Nochri 
          father-in-law, will veer <i>your</i> son (from your Yisraelis 
          wife) from Me. The Torah is not concerned about your 
          grandson from a Nochris, for he is a Nochri.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Ravina):</font></b> We learn that your daughter's son fathered by a 
          Nochri is called your son. (Tosfos - here the Torah did 
          not express concern (<i>only</i>) about your daughter, for 
          here we are concerned also about the grandson. He is a 
          Yisrael, like his mother.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Version #1) Suggestion:</font></b> Ravina holds that the child of a 
          slave or Nochri from a Yisraelis has proper lineage.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Version #2) Suggestion:</font></b> Ravina holds that the child of a 
          slave or Nochri from a Yisraelis is a Mamzer. (Since the 
          child is a Yisrael, Mamzerus applies!) (end of Version 
          #2)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection:</font></b> The child is not a Mamzer, nor is his lineage 
          proper. He is called a Yisrael Pasul (to Kehunah).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> 'Do not intermarry with them' discusses the 
          seven Kena'ani nations! (What is the source for other 
          nations?)
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> 'He will veer' includes anyone that makes veer 
          (i.e. all Nochrim).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Question:</font></b> This is like R. Shimon, who derives laws based 
          on (our understanding of) the purpose of Mitzvos. What is 
          Chachamim's source?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer:</font></b> The Chachamim who disagree with R. Yosi bar 
          Yehudah hold like R. Shimon.
<br>
<br>

sjt:
<font><b>1) WHICH SISTERS ARE INCLUDED IN THE PROHIBITION OF 'ACHOSO'?</b></font><b>
<br>QUESTION:</b> The Gemara teaches that according to Rebbi Yosi b'Rebbi Yehudah, the verse of 'Bas Eshes Avicha' (Vayikra 18:11) teaches that certain types of sisters are exempt from the Torah's prohibition of 'Achoso,' such as a sister born to a Shifchah or to a Nochris. The Gemara asks that perhaps the verse excludes a sister born from a union with a Chiyuv Kares. The Gemara answers that the verse cannot exclude such a sister because it states, 'Moledes Bayis u'Moledes Chutz,' which means that the prohibition of 'Achoso' applies to both a sister from a union in which the father is allowed to remain married to his wife, and to a sister from a union in which the father is required to separate from his wife (because of an Isur Kares). In both cases, the prohibition of 'Achoso' applies to the sister because the verse ends with the words, 'Achoscha Hi' -- 'she is your sister.'
</p><p>
The Gemara asks that perhaps the verse of 'Moledes Bayis u'Moledes Chutz' intends to teach that the prohibition applies to a sister born to a Shifchah or a Nochris, and the words 'Achoscha Hi' refer to such a sister. The Gemara answers that this verse cannot include such sisters in the prohibition because the other verse already excludes them.
</p><p>
Why does the Gemara here cite the words 'Achoscha Hi'? The words 'Moledes Bayis u'Moledes Chutz,' which include a sister from a union with a Chiyuv Kares, appear in Vayikra 18:9, where the words 'Achoscha Hi' do not appear! The words 'Achoscha Hi' appear in a later verse (Vayikra 18:11) which discusses 'Bas Eshes Avicha.' The Gemara should ask instead that the sister from the union of 'Moledes Bayis u'Moledes Chutz' is prohibited because the verse says about her, 'Lo Segaleh Ervasah.' (<b>MELO HA'RO'IM</b>)
</p><p>
(The words 'Achoscha Hi' appear to be the original Girsa in the Gemara, as the Rishonim cite the Gemara with those words. See <b>RIVAN</b>.)
</p><p>
<b>ANSWER:</b> According to Rebbi Yosi b'Rebbi Yehudah, the later verse which says 'Bas Eshes Avicha' and which ends with 'Achoscha Hi' does <i>not</i> teach an Isur. Rather, it excludes a certain type of sister from the Isur. The words 'Achoscha Hi' at the end of the verse teach that the limitation at the beginning of the verse is not all-inclusive; that is, it is a 'limited limitation,' which means that only a woman who does not fit at all into the category of 'Bas Eshes Avicha' is not considered one's sister with regard to the Isur. If, however, she fits in some way into the category of 'Bas Eshes Avicha,' the verse does <i>not</i> intend to exclude her from the Isur. Thus, the phrase 'Bas Eshes Avicha' is the limitation (Mi'ut), while the phrase 'Achoscha Hi' limits the limitation (it minimizes the Mi'ut). (Although the verse 'Moledes Chutz' is also used to minimize the Mi'ut, without 'Achoscha Hi' one would have learned that 'Moledes Chutz' teaches other laws, such as the law which Tosfos (3a, DH Bito) cites in the name of the Targum.)
</p><p>
Accordingly, when the Gemara quotes the words 'Achoscha Hi,' its intention is to add that one should not exclude <i>all</i> types of sisters who come from unsanctioned unions; one type of sister that is included in the Isur is the one mentioned in the earlier verse of 'Moledes Bayis u'Moledes Chutz' -- a sister from a union with a Chiyuv Kares.
</p><p>
<br>


lvr: 31
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOUBTFUL 'KIDUSHIN'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a man was Mekadesh one of two sisters and 
          does not know which, he divorces both;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If he died leaving one brother, he does Chalitzah to 
          both. If he left two brothers, one does Chalitzah and the 
          other Yibum. If both did Yibum, they may keep their 
          wives.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If Reuven and David were Mekadesh Rachel and Leah 
          (sisters) and each is unsure whom he was Mekadesh, each 
          divorces both;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If each died leaving one brother, each brother does 
          Chalitzah to both. If Reuven left one brother and David 
          left two, Reuven's brother does Chalitzah to both. One of 
          David's brothers does Chalitzah and one does Yibum. If 
          both did Yibum, they may keep their wives.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  If Reuven and David have two brothers each, one brother 
          of Reuven does Chalitzah with (e.g. Leah) and one brother 
          of David does Chalitzah with Rachel. Reuven's other 
          brother does Yibum with Rachel and David's other brother 
          does Yibum with Leah;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  If both of Reuven's brothers did Chalitzah, Shimon's 
          brothers may not both do Yibum. One must do Chalitzah and 
          the other may do Yibum. If both did Yibum, they may keep 
          their wives.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Gemara) Suggestion:</font></b> This teaches that Kidushin she'Ein 
          Mesurin l'Vi'ah (Tosfos - the Kidushin itself forbids 
          Bi'ah with her, e.g. because we are unsure if he was 
          Mekadesh her sister) takes effect)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> No. At the time of Kidushin, he knew which he 
          was Mekadesh. Later, he became unsure.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The wording of the Mishnah proves this. It says 
               '<i>he</i> does not know', not '<i>it is not known</i>'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> If so, what is the Chidush?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> When he dies leaving two brothers, one must do 
          Chalitzah before the other does Yibum. If not, (perhaps) 
          he has Bi'ah with the sister of his (true) Yevamah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If two men were Mekadesh two sisters...
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Suggestion:</font></b> This teaches that Kidushin she'Ein Mesurin 
          l'Vi'ah takes effect!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Rejection:</font></b> No. At the time, each knew which he was 
          Mekadesh. Later, they became mixed up.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> It says 'he does not know', not 'it is not 
               known.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> If so, what is the Chidush?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer:</font></b> If one left one brother and the other left two, 
          the lone brother does Chalitzah to both.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> We learned this already!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We would have thought that we forbid in this 
               case due to the case when each has only one brother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The lone brother must do Chalitzah before the Yibum, 
               for perhaps the woman doing Yibum is the Yevamah of 
               the lone brother.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If each left two brothers...
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Question:</font></b> What does this teach that we have not already 
          learned?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that we decree not to do 
          Yibum, lest they do Yibum before Chalitzah.
<br>

sjt:
<p>
<font><b>2) THE MISHNAH'S 'CHIDUSH' IN A CASE OF A DOUBT ABOUT THE REAL YEVAMAH</b></font><b>
<br>QUESTIONS:</b> The Mishnah discusses a case of a man who betrothed (with Kidushin) one of two sisters and forgot (or did not know) which one. If the man dies childless and has only one brother, that brother must do Chalitzah with both women. If he has two brothers, one brother does Chalitzah with one woman, and the other brother may do Yibum with the other woman.
</p><p>
The Gemara asks that the teaching of the Mishnah seems obvious. The Gemara answers that the teaching of the Mishnah is necessary when the man has two brothers, in which case the first brother must do Chalitzah with the first woman and only afterwards may the second brother do Yibum with the second woman. Yibum may not be done first, because that sister might not be the one who was betrothed, in which case the brother who does Yibum with her transgresses the prohibition against marrying the sister of one's Yevamah ('Achos Zekukaso').
</p><p>
(a) Why does the Gemara say that this Chidush is inferred only from the Mishnah's second case, when the man who dies has two brothers? The same principle is necessary in the first case, when the man who dies has only one brother: the surviving brother must do Chalitzah with both women and may not do Yibum with either one, because if he does Yibum with the first he might be transgressing the Isur of 'Achos Zekukaso,' and if he does Yibum with the second he might be transgressing 'Achos Chalutzaso.' (<b>ARUCH LA'NER</b>)
</p><p>
(b) Why does the Gemara say that had there been no Isur of 'Achos Zekukaso,' one would have assumed that the first brother may do Yibum with the first woman and then the second brother may do <i>Chalitzah</i> with the second woman? The Gemara should have said that one would have thought that <i>both</i> brothers may do Yibum with the two women! Once Yibum or Chalitzah has been done with the first sister, the second one certainly may do Yibum, as the Mishnah indeed rules in this case: the first does Chalitzah and the second may do Yibum. (<b>TOSFOS REBBI AKIVA EIGER</b> on the Mishnah)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ARUCH LA'NER</b> answers the first question. He explains that the Gemara's intention is to show that the Mishnah follows the view of 'Yesh Zikah' and therefore teaches that one of the sisters is forbidden because of 'Achos Zekukaso.' This inference can be made only from the second case in the Mishnah, not from the first. In the first case (when there is only one brother), the brother may not do Yibum with the first sister even according to the view of 'Ein Zikah.' By doing Yibum with her, he might be forfeiting the Mitzvah of Yibum ('Bitul Mitzvas Yevamim') since the other sister may be the real Yevamah. By taking the first sister, he prohibits himself to the second sister (who might be the real Yevamah) and thereby forfeits the Mitzvah of Yibum.
</p><p>
The Gemara proves 'Yesh Zikah' only from the second case of the Mishnah, when there are two brothers. Even if the first brother does Yibum with the first sister when the <i>second</i> sister is the real Yevamah, that brother does not forfeit the Mitzvah of Yibum because the other brother may do it.
</p><p>
(The teaching of the Mishnah here does not contradict the Gemara earlier (18a) which states that one may not cause even a <i>possibility</i> of forfeiting the Mitzvah of Yibum. The Gemara there teaches that even when there is another brother who can do Yibum, perhaps that brother will die before he does Yibum. The case of the Mishnah here is different, because in this case there are <i>two</i> doubts (a Sfek Sfeika): perhaps the brother will not die, and even if he does die perhaps the woman with whom the first brother did Yibum was the real Yevamah. One is not prohibited from marrying a woman when there are <i>two</i> reasons to doubt whether he is forfeiting the Mitzvah of Yibum (see Yevamos 27b).)
</p><p>
This explains why the Gemara proves only from the second case of the Mishnah that 'Yesh Zikah' (and 'Zekukah k'Kenusah'). This also explains why Rashi, throughout the Mishnah, explains that the Mishnah follows the opinion that 'Yesh Zikah,' and he does not consider the possibility that the Mishnah maintains 'Ein Zikah' but one may not forfeit the Mitzvah of Yibum.
</p><p>
(b) The Aruch la'Ner's approach does not resolve Rebbi Akiva Eiger's question. Perhaps another approach may be suggested which will answer both questions.
</p><p>
The Gemara does not take into account the possibility that the Mishnah's reason (for requiring the first brother to do Chalitzah before the second brother may do Yibum) is the prohibition against forfeiting the Mitzvah of Yibum. The Gemara understands that since only <i>one</i> of the sisters is actually the Yevamah, the other sister has the status of only a <i>Safek</i> 'Achos Zekukaso.' There is no prohibition against forfeiting a <i>Safek</i> Mitzvah of Yibum by marrying a woman who <i>might</i> be the sister of the Yevamah. After all, the Chachamim are lenient in any case of a Safek Isur d'Rabanan (in this case, the Isur d'Rabanan is the Isur against being Mevatel the Mitzvah of Yibum). Rather, the only reason why the Chachamim were stringent in the case of the Mishnah, a case of a Safek Yevamah, is that the Safek Isur of 'Achos Zekukaso' or 'Achos Chalutzaso' is more severe than an ordinary Isur d'Rabanan, as the Rishonim write. The Isur of 'Achos Zekukaso' resembles that of 'Achos Ishto,' which is an Ervah d'Oraisa, and thus the Chachamim treated this Safek more stringently than an ordinary Safek Isur d'Rabanan.
</p><p>
If the Gemara knows that the Mishnah's reason for prohibiting both brothers from doing Yibum is because of the Safek Isur of 'Achos Zekukaso,' why does the Gemara not prove from the first case in the Mishnah, which says that when there is only one surviving brother he may not do Yibum but must do Chalitzah with both women, that 'Yesh Zikah' and that there is an Isur against marrying 'Achos Zekukaso'? The fact that the Mishnah prohibits the brother from doing Yibum with the first sister proves that there is an Isur of 'Achos Zekukaso,' because, otherwise, he should be permitted to marry the first sister (as the Aruch la'Ner asks).
</p><p>
Perhaps the reason why the Gemara does not prove the Isur of 'Achos Zekukaso' from the first case of the Mishnah is that it is obvious that the brother becomes prohibited from doing Yibum with the second sister once he does Yibum with the first because of the Isur d'Oraisa of 'Achos Ishto.' The only question is why the Mishnah does not permit the brother to do Yibum with the first sister and then do Chalitzah with the second. Perhaps the reason why the Mishnah does not permit this procedure is that the brother might confuse the order and do Chalitzah first and then do Yibum, in which case he will be marrying 'Achos Chalutzaso,' the sister of the woman with whom he did Chalitzah who is forbidden to him. (Rashi mentions such a Gezeirah earlier on 18a, DH l'Olam Ein Zikah.) This explains why the Gemara does not prove from the first case of the Mishnah (in which one brother is required to do Chalitzah with both sisters) that there is an Isur of 'Achos Zekukaso.' The Gemara can prove it only from the second case, in which there are two brothers. In that case, the Mishnah allows one brother to do Chalitzah and the other to do Yibum, and nevertheless it does not allow the first brother to do Yibum before the Chalitzah is done with the other sister.
</p><p>
This approach may answer Rebbi Akiva Eiger's question as well. Rebbi Akiva Eiger asks why, in the first stage of the Gemara when it assumes that there is no Isur of 'Achos Zekukaso,' the Gemara does not say that <i>both</i> brothers may do Yibum with both sisters. The answer is that the Gemara reasons that it is not permitted for both brothers to do Yibum with the two 'Safek' sisters who fell to Yibum from the deceased brother, due to a Gezeirah for a case of two women who were actually married to the deceased brother. That is, if the two brothers would be permitted to do Yibum with the two sisters (when only one of them is the real Yevamah), people will not be aware that it is because one of them is not a Yevamah at all; they will mistakenly permit two brothers to do Yibum with two Yevamos who were married to one man. (This Gezeirah is found in other situations, as described on 31b.)
</p><p>
Accordingly, it is clear that the Mishnah does not permit both brothers to do Yibum for that reason (the Gezeirah). The Gemara asks, however, that if the Mishnah applies all of these Gezeiros to prohibit Yibum in the various cases, why, in the second case of the Mishnah, does it permit the first brother to do Chalitzah with the first sister and the second brother to do Yibum with the second sister? The Mishnah should have permitted the procedure in the opposite order -- the first brother should do <i>Yibum</i> with the first sister, and then the second brother should do <i>Chalitzah</i> with the second sister. This order would prevent people from mistakenly assuming that in a case in which there is only <i>one</i> brother, he may do Chalitzah with the first sister and then do Yibum with the second (in which case he would transgress the Isur of 'Achos Chalutzaso'). If the Mishnah indeed is concerned for such mistakes, it should have specified that in a case of two surviving brothers, the first should do Yibum and only afterwards may the second do Chalitzah, so that even if a single brother learns from that case that he, too, may do Yibum with the first sister and then do Chalitzah (as opposed to doing Chalitzah with both), he will at least not transgress an Isur as severe as 'Achos Chalutzaso,' but only the less-severe Isur of 'Achos Zekukaso.' ('Achos Zekukaso' is less of an Isur than 'Achos Chalutzaso' because after he does Chalitzah with the second sister it removes the Zikah and, retroactively, when he married the first sister there was no Isur of 'Achos Zekukaso'. If, however, he does Chalitzah first and then Yibum with the second sister, he will be living with his 'Achos Chalutzaso' and the Isur will never be removed.)
</p><p>
Since the Mishnah requires that the first brother do Chalitzah and the second do Yibum, it is apparent that the requirements of the Mishnah are not due to Gezeiros at all, but are based on preventing a transgression of the Isur of 'Achos Zekukaso.' (M. Kornfeld)
</p><p>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SISTERS THAT FALL TO 'YIBUM' TOGETHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Contradiction (Mishnah #1):</font></b> If two of four brothers were 
          married to sisters and they died, the surviving brothers 
          do Chalitzah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In our Mishnah, why may one do Yibum?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> There are two explanations why Mishnah #1 forbids 
          Yibum. Neither applies here.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Explanation #1:</font></b> Yesh Zikah (it is as if both sisters 
               are Mekudashos to each brother).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Explanation #2:</font></b> It is forbidden to Mevatel the 
               Mitzvah of Yibum. (If we allow Yibum, perhaps Reuven 
               will do Yibum with Leah and Shimon will die, and the 
               Yevamah will be exempt without Yibum or Chalitzah, 
               for she is Achos Ishto of Reuven!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> In our Mishnah, each can say that he does Yibum with 
               his Yevamah (and he has nothing to do with her 
               sister)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If they both did Yibum, they may keep their 
          wives.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Shila - Beraisa):</font></b> This is even if they are Kohanim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b>  The Isur for a Kohen to marry a Chalutzah is 
          only mid'Rabanan. Chachamim did not forbid a Safek (if 
          the Kohen really did Yibum, the Chalitzah which preceded 
          it was meaningless.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Objection:</font></b> The Isur is mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> '<i>And</i> a divorced woman (is forbidden to 
               a Kohen)' includes a Chalutzah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> The Isur is only mid'Rabanan; the verse is only 
          an Asmachta.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE 'MITZVAH' IS INCUMBENT ON THE OLDEST BROTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> The Mitzvah is for the oldest brother to do 
          Yibum. If a younger brother did Yibum, it is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara - Beraisa):</font></b> 'And the firstborn...' - the Mitzvah 
          is for the oldest to do Yibum;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  'That will give birth' excludes an Ailonis, who cannot 
          give birth;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  'Yakum Al Shem Achiv ' - for inheritance.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps this commands to name the child like 
          the deceased?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> It says here, 'Yakum Al Shem Achiv', like it says 
          elsewhere, 'Al Shem Acheihem Yikar'u b'Nachalasam'. Just 
          like there 'Shem' refers to inheritance, also here.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  'His name will not be wiped out' excludes a Seris, whose 
          name is wiped out (even had he not died he could not have 
          children).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Rava):</font></b> Everywhere else in the Torah, a verse does not 
          depart from its simple meaning. Here, a Gezeirah Shavah 
          entirely uproots the simple meaning.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Without the Gezeirah Shavah, how could one 
          think that the Mitzvah is to name the child after the 
          deceased? Who would be commanded about this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Yavam were commanded, it should have said 
               'Yakum Al Shem Achicha (your brother)'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Beis Din were commanded, it should have said 
               'Yakum Al Shem Achi Aviv (his father's brother)'!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> The Torah would instruct Beis Din to tell the 
          Yavam to call the child after the deceased.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Gezeirah Shavah teaches not to understand this 
               way. (Rather, it discusses inheritance.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHY DID THE TORAH SPECIFY THE FIRSTBORN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> The Beraisa taught that the oldest is commanded 
          to do Yibum. We should say that only a firstborn does 
          Yibum!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> This cannot be, for then we would not need the 
          verse exempting Eshes Achiv she'Lo Hayah b'Olamo from 
          Yibum.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection (Rav Achai):</font></b> Perhaps this exclusion applies 
          when the newborn brother is a firstborn to his mother!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> The Torah made Yibum dependent on inheritance, 
          which is only from the father.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps Yibum applies only when there is a 
          firstborn (and then, any brother may do Yibum)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> 'And one of them died' connotes that either (of 
          the two brothers) died, even the firstborn, and it says 
          to do Yibum.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps (to fulfill 'And the firstborn...' we 
          must say that) this is only when a younger brother died, 
          and the firstborn does Yibum!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> If so, we would not need a verse exempting Eshes 
          Achiv she'Lo Hayah b'Olamo.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps the Yibum of a younger brother is 
          valid only when there is no firstborn!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection:</font></b> 'When brothers will live together' equates the 
          brothers (any may do the Mitzvah).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> We should say that when there is a firstborn, 
          the Mitzvah is on the oldest; when there is no firstborn, 
          there is no preference. A Beraisa teaches otherwise!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Abaye Kashisha - Beraisa):</font></b> The Mitzvah is for the 
               oldest to do Yibum. If he declines, we ask his 
               younger brother. If he declines, we return to the 
               oldest.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> The oldest is like a firstborn. Just like a 
          firstborn is first to do Yibum, also the oldest (even if 
          he is not a firstborn) is first.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Suggestion:</font></b> We should say that a firstborn who does Yibum 
          inherits the deceased, but a regular brother that does 
          Yibum does not!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection:</font></b>  Even a regular brother fulfills 'Yakum Al 
          Shem Achiv'.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> Why did the Torah specify the firstborn?
<br>
<br>

sjt:
<font><b>1) PERMITTING AN 'ACHOS ZEKUKASO'</b></font><b>
<br>QUESTION:</b> The Gemara discusses the case of the Mishnah later (26a) of four brothers, two of whom married sisters and then died childless. The two surviving brothers must do Chalitzah with the two sisters; they may not do Yibum. Neither brother may do Yibum with the first sister because she is 'Achos Zekukaso,' the sister of a woman with whom he needs to do Yibum.
</p><p>
After the first brother does Chalitzah with the first sister, why is the second brother still prohibited from doing Yibum with the second sister? Since the first sister has already done Chalitzah, there is no more Zikah with that sister and the second sister is no longer an 'Achos Zekukaso' to the second brother!
</p><p>
<b>RASHI</b> explains that the reason why the second sister may not do Yibum is based on the rule that once she became prohibited for one moment, she remains prohibited forever ('Ne'esrah'). What made her prohibited for one moment?
</p><p>
Rashi mentions two possible reasons for why she was prohibited for one moment. The first reason is that the Mishnah maintains 'Yesh Zikah,' and thus the Zikah which requires the first brother to do Chalitzah with the first sister renders the second sister prohibited to the second brother (as well as to the first) as 'Achos Zekukaso.' Alternatively, the prohibition against forfeiting the Mitzvah of Yibum ('Isur Bitul Mitzvas Yevamim') prohibits her, because when both sisters fall to Yibum neither brother is able to do Yibum lest he forfeit the Mitzvah of Yibum of the other sister in the event that the other brother dies before he does Yibum. Thus, even after Chalitzah is done with one of the sisters, the other sister remains prohibited to the second brother (because of the return of the Isur of 'Eshes Ach') since she was prohibited for one moment.
</p><p>
In contrast, in the case of the Mishnah earlier (23b) in which only one of the two sisters who fell to Yibum is the real Yevamah (and the other was not married to the deceased brother at all and does not need Yibum), Rashi writes that once one brother does Chalitzah with one of the sisters, the second brother may do Yibum with the second sister because she was not prohibited in the first place. If she is <i>not</i> the real Yevamah, she cannot become prohibited (since she has no connection at all to any of the brothers), and if she <i>is</i> the real Yevamah, she was permitted to the brothers all along (we just did not know it).
</p><p>
Rashi's explanation implies that in the case of four brothers (26a), even when one brother does Chalitzah the Zikah to the other brothers is <i>not</i> retroactively removed. If the Chalitzah would remove the Zikah retroactively, the second brother would not be prohibited to the second sister in the first place since, retroactively, she was not an 'Achos Zekukaso' (the first sister's Chalitzah with the first brother shows that she was Zekukah only to the first brother and not to the second, and thus her sister was never the sister of someone who was Zekukah to the second brother). Rather, the Zikah is not removed until the moment at which one brother does Chalitzah; until that time, there <i>was</i> a Zikah to all of the brothers and it is not removed retroactively.
</p><p>
This is also evident from the words of Rashi in the end of the Mishnah. Rashi there writes that in a case of 'Kadmu v'Kansu,' in which the two brothers of the deceased man both did Yibum with the two sisters (when they were not permitted to do so because of the Safek Isur involved), b'Di'eved they are permitted to remain married. This is because after the first brother did Yibum, one of the two women fulfilled the Mitzvah of Yibum and her Zikah to the other brother was removed; consequently, the second sister is not forbidden to that brother as 'Achos Zekukaso.' Rashi adds, 'Isura d'Avad Avad' -- even though he transgressed an Isur (of marrying 'Achos Zekukaso'), the act is already done. If the Zikah is removed retroactively, Rashi should not call the act an Isur at all; the first sister (who did Yibum with the first brother) was never Zekukah to the second brother and thus her sister was <i>completely</i> permitted to him!
</p><p>
The words of Rashi here are difficult to reconcile with the words of Rashi earlier in the Mishnah (DH Ein Motzi'in). Rashi there writes that when two brothers do Yibum with two sisters, when the second one does Yibum he removes the Zikah and the Isur of 'Achos Zekukaso' from the first brother <i>retroactively</i>, such that the first brother was never Zekukah to the second woman (and thus when he did Yibum with the first sister, he did not transgress the Isur of 'Achos Zekukaso'). Rashi clearly says that the Zikah is removed retroactively. If he means that the Zikah is merely removed from the point of Yibum onwards (and until that point she was considered Zekukah to each brother), why should her Yibum (or Chalitzah) permit her sister to marry the other brother? The other brother should be prohibited to her, just as a man who was once married to a woman and divorced her remains prohibited to her sisters (the marriage bond that once existed between the man and the woman is not removed retroactively).
</p><p>
Moreover, the Gemara earlier (17b) teaches that when a man betrothed (with Kidushin) the sister of his Yevamah (his 'Achos Zekukaso'), he is instructed to wait until his brother does Yibum with the Yevamah. Once Yibum is done, the Isur of 'Achos Zekukaso' is removed because the Yevamah is no longer Zekukah to the first brother. The Gemara there clearly teaches that once Yibum is done, no Isur of 'Achos Zekukaso' remains. It must be that the Zikah is uprooted retroactively.
</p><p>
Why, then, does Rashi here write that the reason why the second woman is prohibited to the second brother is that she became prohibited for one moment and thus remains so forever? Why is the Zikah not removed retroactively?
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps the Zikah indeed is removed retroactively, as Rashi writes earlier (23b). Why, then, does Rashi write in the end of the Mishnah that one of the brothers transgressed an Isur ('Isura d'Avad Avad') when he did Yibum with one of the sisters before the other brother did Chalitzah with the other sister, if the Zikah is removed retroactively when Chalitzah is done? At the moment the brother did Yibum, he had no way of knowing that his brother definitely would do Chalitzah or Yibum with the second sister and thereby uproot her Zikah retroactively (in case she was the real Yevamah). At the time he lived with the first sister, she was 'Achos Zekukaso' even though the Zikah indeed was later uprooted retroactively, because his act -- at the moment that he did it -- was forbidden.
</p><p>
Also, in the case of the four brothers (26a), Rashi writes that each Yevamah was 'Ne'esrah' for one moment because of the Isur of 'Achos Zekukaso.' Although the Isur is removed once the second brother does Chalitzah, at the time the first brother does Yibum (before the other brother does Chalitzah) his act is forbidden because he had no way of knowing that his brother would do Chalitzah. The Safek is not merely what the reality is (i.e. which sister is the real Yevamah), but what will occur in the future. (This dichotomy is more easily understood according to the opinion of 'Ein Bereirah' -- when the status of an object is unknown at the present time, a future occurrence cannot determine its status retroactively. The uncertain status of the woman with whom the first brother did Yibum cannot be clarified based on the future event of the second brother doing Chalitzah with her sister. This case is not similar to the case in the Mishnah earlier (23b) in which the doubt is merely which woman was married to the deceased brother, where the only missing information is information which presently exists in the world but is unknown, in contrast to information which will come about only when a future event occurs.)
</p><p>
(b) The <b>RASHASH</b> suggests that the word 'l'Mafrei'a' ('retroactively') in Rashi (on 23b) is an error. Rashi does not mean that the Zikah is removed retroactively, but rather that the Isur is removed only from the time of Yibum or Chalitzah. She became 'Ne'esrah' for one moment because there was Zikah before the Yibum was done. That is why Rashi says that the brother transgressed an Isur at the moment he did Yibum with her.
</p><p>
The Rashash does not address the question of why 'Achos Zekukaso' is permitted once the second brother does Yibum or Chalitzah with the other sister. The answer may be that the Chachamim compare 'Achos Zekukaso' after the Zekukah does Chalitzah (and the Isur of Zikah is removed) to an 'Achos Ishto' after the death of the wife -- in which case the surviving sister is permitted, and not to an 'Achos Ishto' after the divorce of the wife. In the case of an 'Achos Ishto' after the divorce of the wife, it is the action of the husband which removes the Ishus, the bond of marriage, from his wife (the first sister). When it is his action that removes it, the Torah does not permit him to marry the woman's sisters. In contrast, in the case of the husband's death it is not the action of the husband that removes the Ishus from his wife, the first sister. Similarly, when the second brother does Yibum or Chalitzah with his Zekukah, it is not the action of the remaining brother that removes the Zikah between him and the Yevamah. Therefore, the case of 'Achos Zekukaso' is comparable to a case of an 'Achos Ishto' after the death of the man's wife, the first sister, in which case the second sister is permitted to him. (According to this logic, the <i>mother</i> or <i>daughter</i> of all of the Zekukos will be prohibited to <i>all</i> of the brothers even after one brother does Yibum or Chalitzah.)
</p><p>


<font><b>2) RASHI'S EXPLANATION FOR THE GEMARA'S CONTRADICTION</b></font><b>
<br>QUESTION:</b> The Gemara points out a contradiction between Mishnayos. The Mishnah here (23b) discusses a case of a man who betrothed (with Kidushin) one of two sisters and forgot (or did not know) which one. If the man dies childless and has two brothers, one brother does Chalitzah with one woman, and the other brother may do Yibum with the other woman. The Mishnah adds that if, b'Di'eved, the two brothers did Yibum with both of the sisters before they asked Beis Din what they should do ('Kadmu v'Kansu'), they are permitted to remain married ('Ein Motzi'in').
</p><p>
The Mishnah later (26a), however, discusses a case of four brothers, two of whom married sisters and then died childless. The two surviving brothers must do Chalitzah with the two sisters; they may not do Yibum. The Mishnah adds that if, b'Di'eved, the two brothers did Yibum with the sisters before they asked Beis Din what they should do ('Kadmu v'Kansu'), they are not permitted to remain married but must divorce their wives ('Yotzi'u').
</p><p>
There seem to be two points of contradiction between the two Mishnayos. The first difference is that the Mishnah here permits the second brother to do Yibum after the first brother does Chalitzah, while the Mishnah later does not permit the second brother to do Yibum. The second difference is that the Mishnah here says that if, b'Di'eved, both brothers did Yibum, 'Ein Motzi'in' -- they do not have to divorce their wives, while the Mishnah later says that b'Di'eved they <i>do</i> have to divorce their wives ('Yotzi'u'). Does the Gemara's question address the contradiction with regard to the first Halachah (what the brothers should do l'Chatchilah) or with regard to the second Halachah (what the brothers should do b'Di'eved)?
</p><p>
<b>RASHI's</b> words are unclear. He seems to give two different explanations for the Gemara's contradiction. Rashi first writes (DH 23b, DH Mai Shena) that the Gemara's question is from the second Halachah of 'Kadmu v'Kansu.' However, in his next comment (DH Choltzos v'Lo Misyabmos) he writes that the Gemara's question is from the first Halachah -- the Mishnah here says that the second brother may do Yibum, while the Mishnah later permits neither brother to do Yibum.
</p><p>
(From the tone of the Gemara itself it seems more likely that the question is from the first Halachah of the Mishnah. The Gemara does not even quote the second part of the Mishnah of 'Kadmu v'Kansu Ein Motzi'in,' as <b>TOSFOS</b> asks in DH u'Mai Shena.)
</p><p>
Rashi also seems to contradict his words when he explains the answer of the Gemara (24a). The Gemara answers that in the Mishnah later, in the case of the four brothers the Yevamos are prohibited to each brother either because of 'Yesh Zikah' (and thus each one is 'Achos Zekukaso') or because of 'Bitul Mitzvas Yevamim.' In contrast, the prohibition of the sisters in the case of the Mishnah here is a Safek Isur, since each sister might be the Yevamah or the sister of the Yevamah.
</p><p>
Rashi (24a, DH v'Iy l'Man d'Amar) first explains the answer of the Gemara according to the <i>second</i> way he explains the contradiction (that the first Mishnah permits the second brother to do Yibum, while the second Mishnah prohibits both brothers from doing Yibum). Rashi explains that the Mishnah later prohibits Yibum because even after one brother does Chalitzah with one of the sisters, the second sister remains forbidden to the second brother because of the principle, 'Ne'esrah Sha'ah Achas' -- as long as there was one moment during which she was forbidden to him, she remains forbidden forever. In contrast, in the case of the Mishnah here there is no prohibition of 'Ne'esrah' because the second sister -- if she was not the real Yevamah -- was never married to the deceased brother and was never forbidden; she was neither a Yevamah nor a Tzarah of the Yevamah.
</p><p>
However, Rashi continues and explains that the Gemara's answer means that in the Mishnah here, if, b'Di'eved, the brothers already married the sisters, the reason why they may stay married is that each brother may claim that his wife is the real Yevamah. In contrast, in the case of the four brothers, it is known for certain that at least the first brother who did Yibum transgressed the Isur of 'Achos Zekukaso.'
</p><p>
This answer, as Rashi explains it, addresses the contradiction between the two Mishnayos in a case of 'Kadmu v'Kansu' -- the Gemara's question according to Rashi's <i>first</i> explanation. If Rashi understands that the Gemara's question was from the case of 'Kadmu v'Kansu' (the b'Di'eved situation) and that its answer addresses the case of 'Kadmu v'Kansu,' why does he mention the point of 'Ne'esrah' which prohibits the brothers from doing Yibum <i>l'Chatchilah</i>? (<b>RITVA</b>, <b>RASHASH</b>)
</p><p>
Rashi seems to contradict himself in another place as well. In his explanation of the Gemara's answer, Rashi explains that the Gemara's question is from the case of 'Kadmu v'Kansu': the Mishnah here permits them to stay married b'Di'eved, while the Mishnah later requires them to divorce. The Gemara answers that in the case of the Mishnah here, the brothers who did Yibum did not transgress any definite Isur.
</p><p>
However, in the end of his explanation on the Mishnah, Rashi gives a different reason for why they may stay married if, b'Di'eved, they both did Yibum with the two sisters. Rashi writes that not only was each brother's act merely a Safek Isur, but even if the first brother <i>did</i> marry the 'Achos Zekukaso' and not the real Yevamah, nevertheless when the second brother does Yibum he removes the Zikah from the first brother (retroactively) so that the first brother's wife is not considered 'Achos Zekukaso.' Neither sister can be called 'Achos Zekukaso' (not even out of doubt) once both did Yibum and all Zikah was removed retroactively.
</p><p>
This is not true in the case of the four brothers. Even after the second brother does Yibum, the first brother's wife remains forbidden to him because of 'Ne'esrah' -- at one moment in the past she was definitely forbidden to him (when they fell to Yibum, she was definitely his 'Achos Zekukaso'). In the case of the Mishnah here, however, it becomes revealed that each sister was never forbidden even for a moment: if one woman is the real Yevamah, then she was always permitted, and if her sister is the real Yevamah, then the first was never married to the deceased brother nor is she the sister of a woman who is Zekukah to Yibum, because the second brother removed that Zikah when he did Yibum! (See <b>TOSFOS REBBI AKIVA EIGER</b>.)
</p><p>
Moreover, what advantage does each way of understanding the Gemara's question and answer have over the other way?
</p><p>
<b>ANSWER:</b> It is clear from <b>TOSFOS</b> and the other Rishonim that in their edition of Rashi, Rashi explains that the question of the Gemara is from the case of 'Kadmu v'Kansu,' the b'Di'eved situation. Apparently, Rashi at a later time retracted his original explanation and added a new explanation to his commentary. Both explanations were included in our edition of Rashi. (See Appendix to Insights to Maseches Eruvin, where this phenomenon in the text of Rashi is discussed.)
</p><p>
According to Rashi's original explanation (23b), the question of the Gemara is from the case of 'Kadmu v'Kansu,' as the Rishonim quote Rashi. Rashi in the answer of the Gemara also writes (at the end of DH v'Iy l'Man d'Amar) that the Gemara answers its question when it says that in the case of the Mishnah the Isur is only a Safek Isur, while in the case of the Mishnah later the Isur is a definite Isur. (This is also the intention of Rashi later, 28a, DH b'Shlama.)
</p><p>
At a later time, Rashi retracted his first explanation and wrote the other comments (23b, DH Choltzos v'Lo Misyabmos, until the word 'Hilkach' in the end of DH v'Iy l'Man d'Amar on 24a). Rashi added a sentence (from the words 'v'Iy Nami') in the end of his commentary on the Mishnah, as well as a sentence (from the words 'v'Leis Lei' until the words 'Su Lo Mishtaryah') in his explanation later (27b, DH Mesah Rishonah). 
</p><p>
Why did Rashi originally understand that the Gemara's question was from the case of 'Kadmu v'Kansu,' the b'Di'eved case mentioned in the Mishnah, if the Gemara does not even quote those words from the Mishnah?
</p><p>
The <b>RITVA</b> and <b>RASHBA</b> explain that Rashi found the Gemara's answer inconsistent with its question. Rashi had two difficulties with the Gemara if the Gemara's question was why none of the brothers (in the Mishnah on 26a) may do Yibum l'Chatchilah. Did the Gemara know that there is such a concept of 'Ne'esrah' when it asked its question, or did it not know of such an Isur? If it did not know of the Isur of 'Ne'esrah,' then what is the Gemara's answer? The Gemara, in its answer, cannot mean that there <i>is</i> an Isur of 'Ne'esrah' in the case of the Mishnah later (the way Rashi explains the answer in his first explanation, in DH v'Iy l'Man d'Amar), because the Gemara would not need to add in its answer that in the Mishnah here 'perhaps each one [can claim that he] will get the right sister (the one who is the real Yevamah).' Even if one gets the wrong sister there is no Isur of 'Ne'esrah,' and thus each brother is permitted to remain married to the woman with whom he did Yibum, whether she is the real Yevamah or whether she is the Yevamah's sister.
</p><p>
The second problem which Rashi had with the Gemara's answer, if the Gemara's question was from the first Halachah of the Mishnah (of doing Yibum l'Chatchilah), was as follows. Rashi originally maintained that the prohibition against forfeiting the Mitzvah of Yibum ('Isur Bitul Mitzvas Yevamim') does not remain in force after Zikah is removed. (This Isur is not one which prohibits the act between that man and that woman, but it is an 'external' Isur intended merely to prevent the forfeiting of a <i>different</i> Mitzvah of Yibum.) Since the Gemara in its answer equates the opinion of 'Yesh Zikah' and the opinion of 'Asur l'Vatel Mitzvas Yevamim,' it cannot be saying that the woman is forbidden in the case of the four brothers because of 'Ne'esrah' because the Gemara cannot invoke such a principle ('Ne'esrah') according to the opinion of 'Asur l'Vatel Mitzvas Yevamim.' The Gemara's answer must mean something else -- that in the case of the four brothers, the Chachamim decreed that the brothers should not arrange that one does Chalitzah and another do Yibum, because they might reverse the order and thereby violate a definite Isur (of 'Achos Zekukaso' or 'Bitul Mitzvas Yibum').
</p><p>
Why, according to the opinion that maintains 'Yesh Zikah,' does the Gemara not answer simply that in the case of the four brothers, each woman was 'Ne'esrah' at one point in time? The Gemara does not need to rely on the Gezeirah, according to the opinion that maintains 'Yesh Zikah'! It must be that the Gemara never had a question according to the opinion of 'Yesh Zikah' because it knew that there is an Isur of 'Achos Zekukaso' which prevents the brothers from doing Yibum. Why, then, does the Gemara ask its question ambiguously, without specifying that the question is only according to the opinion that maintains 'Ein Zikah'? Moreover, why in its answer does the Gemara make any mention of the opinion that maintains 'Yesh Zikah'?
</p><p>
These questions motivated Rashi to explain that the question of the Gemara is from the second part of the Mishnah, the case of 'Kadmu v'Kansu.' Accordingly, the Gemara always knew that in the case of the Mishnah later (26a) the Isur of 'Achos Zekukaso' prevents the brothers from doing Yibum l'Chatchilah, and its only question was why, in the case of the Mishnah here, may the brothers stay married b'Di'eved, while in the case of the Mishnah later they must divorce their wives. To this the Gemara answers that in the case of the Mishnah later the brothers committed a definite Isur, while here they did only a Safek Isur.
</p><p>
After further consideration, Rashi became dissatisfied with this explanation of the Gemara's question. He reasoned that the question cannot be from the case of 'Kadmu v'Kansu' because there is an obvious difference between the Mishnah here and the Mishnah later in a situation of 'Kadmu v'Kansu.' In the case of the Mishnah here, no Isur exists after the brothers marry the sisters. In the case of the Mishnah later, an Isur still exists after the brothers marry the sisters. Accordingly, the Gemara would not need to answer that one Mishnah (26a) is a case of a definite Isur, and the other Mishnah (here) is a case of a Safek Isur. The Gemara could have answered simply that in the case of the Mishnah here, the Zikah is removed completely and the brothers no longer transgress any Isur by being married to the women!
</p><p>
Rashi therefore revised his explanation and wrote that the Gemara in its question did not know of the Isur of 'Ne'esrah,' and it answers that there is an Isur of 'Ne'esrah' not only according to the opinion that maintains 'Yesh Zikah' but even according to the opinion that maintains that one may not forfeit the Mitzvah of Yibum. When the Gemara adds that in the case of the Mishnah here, perhaps each brother gets the right woman, its intention is to answer a different question entirely: even if there is no Isur to do Chalitzah first and then do Yibum (because there is no problem of 'Ne'esrah'), it should still be Asur d'Rabanan for the second brother to do Yibum because perhaps the brothers might reverse the order and do Yibum first and then Chalitzah (in which case the first brother will transgress the Isur of 'Achos Zekukaso' if the woman with whom he does Yibum is not the real Yevamah). To this question the Gemara answers that even if the brothers mistakenly reverse the order, there will be only a <i>Safek</i> Isur of 'Achos Zekukaso,' and a Safek Isur is not a valid reason for the Chachamim to prohibit doing Chalitzah and then Yibum due to a concern that the brothers will reverse the order.
</p><p>
Rashi later (27b) points out that this understanding seems to contradict the words of Rav (27b) who says that the Isur of 'Ne'esrah' does not apply in the case of two sisters who fall to one brother. If, according to the opinion that maintains 'Asur l'Vatel Mitzvas Yevamim,' the rule of 'Ne'esrah' cannot apply (because the Isur of 'Bitul Mitzvas Yibum' is not strong enough to give her the status of Asur for one moment), then Rav might follow that opinion (see Tosfos 27b, DH Aval). However, according to Rashi's second way of explaining the Gemara, the Gemara concludes that 'Ne'esrah' always applies, even according to the opinion that maintains 'Asur l'Vatel Mitzvas Yevamim.' It must be that Rav there argues with the Gemara here.
</p><p>


<font><b>3) WHO DOES YIBUM -- THE 'BECHOR' OR THE 'GADOL' OF THE BROTHERS?</b></font><b>
<br>QUESTION:</b> The Gemara says that the Mitzvah of Yibum is upon the oldest brother of the deceased husband. If he declines to do Yibum, Beis Din asks a younger brother. If none of the younger brothers want to do Yibum, Beis Din forces the oldest brother to do Yibum.
</p><p>
The Gemara derives that the Mitzvah of Yibum is upon the oldest brother from the verse, 'v'Hayah <i>ha'Bechor</i>' (Devarim 25:6). The Gemara asks that perhaps the verse teaches that the Mitzvah of Yibum applies only when there is a Bechor (firstborn son) and it does not apply at all when there is no Bechor. What is the source that Yibum applies even when the oldest brother is not a Bechor?
</p><p>
The Gemara answers that the verse teaches that 'just as the Bechorah of the Bechor causes him [to have the Mitzvah of Yibum], so, too, the seniority of the oldest son causes him [to have the Mitzvah of Yibum].'
</p><p>
The Gemara's answer is difficult to understand. A Bechor is special not because he is the oldest but because he is the firstborn. A number of unique laws apply exclusively to a Bechor and not to a brother who happens to be the oldest of the siblings (such as Pidyon ha'Ben and the right to inherit a double portion). Why does the Gemara assert that the oldest son is special like a Bechor?
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> explains that as far as Yibum is concerned, it is clear that the Gemara rejects its original assumption that a Bechor is unique by virtue of the fact that he is the firstborn. As far as Yibum is concerned, the fact that a brother is the firstborn is not relevant; it makes no difference whether he is the Bechor or he is the oldest. What is relevant is the brother's age. If he is the oldest son, the Mitzvah of Yibum falls on his shoulders first. The age makes a difference because it is appropriate for the oldest brother to take responsibility for the deceased brother's family. If he shirks his responsibility, it falls to the younger brothers.
</p><p>
(When the Gemara says that 'the Bechorah of the Bechor causes him [to have the Mitzvah of Yibum],' it refers to his age and means that the fact that he is the oldest -- and not the fact that he is the firstborn -- causes him to have the Mitzvah of Yibum.)
</p><p>
<br>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> This diminishes his inheritance of the deceased;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a firstborn gets an extra portion only 
               from Muchzak (what his deceased father already had), 
               not from Ra'uy (what was destined to come to him), 
               also, a Yavam.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN DO WE ACCEPT CONVERTS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one was suspected of Bi'ah with a slave or 
          Nochris and she converted, he should not marry her. If he 
          did, he may stay married;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If Reuven was suspected of Bi'ah with a married woman, 
          and they (Beis Din) made her husband divorce her, even if 
          Reuven married her; he must divorce her.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> If she converts, the conversion is 
          valid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Contradiction (Beraisa - R. Nechemyah):</font></b> If one converted 
          to marry a woman or man, or to receive food or authority 
          from the king, the conversion is invalid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one converted to be saved from lions, because of 
               a dream, or in the days of Mordechai and Esther 
               (when people feared the Yisraelim), the conversion 
               is invalid, unless he converts nowadays.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> This cannot be!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Contradiction:</font></b> Rather, it must be like nowadays 
               (when surely it is not for authority).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> R. Yitzchak bar Shmuel said that the Halachah 
          follows the opinion that all these are valid conversions.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If so, he should be allowed to marry her!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> One should not cause people to speak ill about 
          him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> (The Mishnah forbids marrying her due to) 
               'Remove from yourself stiff talk and ill rumors'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Beraisa):</font></b> We do not accept converts in the era of 
          Mashi'ach. Similarly, we did not accept in the days of 
          David and Shlomo.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (R. Elazar):</font></b> We learn from 'Hen Gur Yagur...' (only one 
          who dwells with us (converts) when Hash-m is not with us, 
          i.e. in our poverty, will receive a portion with us in 
          the world to come).
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>ONE SUSPECTED OF ADULTERY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one was suspected of Bi'ah with a married 
          woman...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav):</font></b> This applies only if there were witnesses.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rav Sheshes:</font></b> Rav must have been sleeping when he said 
          this!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (against Rav - Beraisa):</font></b> If Reuven was suspected 
          of Bi'ah with a married woman, and Beis Din made her 
          husband divorce her, and she married David and was 
          divorced, and Reuven married her, he may keep her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If witnesses saw that Reuven had Bi'ah with 
                    her, even if she married someone else in 
                    between, which stops the rumors, she is 
                    forbidden to Reuven!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, there are no witnesses. They may 
               stay married only because she married someone else 
               in between and ceased the rumors. This is unlike 
               Rav!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1:</font></b> Rav holds that even if she didn't get married 
          in between, they can stay married. We force them to 
          separate only when there are witnesses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that even when she married David 
               in between, l'Chatchilah she may not remarry Reuven.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (Beraisa):</font></b> This applies when she has no 
          children. If she has children, they may stay married;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there are witnesses of adultery, even if she has 
               many children he must divorce her!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1:</font></b> Rav establishes our Mishnah to be when there 
          are witnesses, and she has children.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What forced Rav to establish our Mishnah in 
          such a case, to say that we force them to separate only 
          when there are witnesses? He could have said that she has 
          no children, and we force them to separate even without 
          witnesses!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> The Mishnah is difficult;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why does it say 'they made him divorce 
               her'? It should say 'he divorced her'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that Beis Din forced the 
               divorce. Beis Din forces only when there are 
               witnesses
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (to Questions (d) and (f)):</font></b> The Beraisos are 
          like Rebbi (who says that we force without witnesses).
<br>

sjt:
<p>
<font><b>4) IMPURE MOTIVES</b></font><b>
<br>QUESTION:</b> The Gemara rules that it is forbidden for Beis Din to accept a convert who seeks to become Jewish only to receive the benefits that a Jew receives.
</p><p>
This ruling seems to conflict with the conduct of Hillel. The Gemara in Shabbos (31a) relates that a Nochri once learned of the honor afforded to the Kohen Gadol. He came to Hillel and requested that he be converted so that he could become a Kohen Gadol. Hillel converted him and told him to go learn the laws of Kehunah Gedolah.
</p><p>
Why did Hillel accept the convert if the Gemara here forbids accepting an insincere convert?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> in Shabbos explains that Hillel did not actually convert the Nochri upon request. Rather, Hillel told the Nochri to go learn the laws of Kehunah Gedolah <i>before</i> he converted. Even after he discovered that he could not become a Kohen Gadol, he still desired to become Jewish, and thus Hillel converted him.
</p><p>
However, this answer raises another problem. Why was Hillel allowed to teach Torah to a Nochri before he converted? The Gemara in Chagigah (13a) rules that one may not teach Torah to a Nochri. Similarly, the Gemara in Sanhedrin (59a) states that a Nochri who learns Torah is Chayav Misah. The Maharsha answers that for purposes of conversion, one is permitted to teach Torah to a Nochri.
</p><p>
(b) <b>TOSFOS</b> here suggests that Hillel saw that the Nochri was sincere and that he would convert even if he could not become a Kohen Gadol, and therefore he converted him.
</p><p>
<b>REBBI AKIVA EIGER</b> points out that the words of Tosfos refute the assertion of the Maharsha that one may teach Torah to a Nochri for purposes of conversion. Tosfos implies that Hillel 'took a chance' by converting the Nochri without immutable evidence that he was sincere. Accordingly, Tosfos understands that Hillel did not teach the laws of Kehunah Gedolah to the Nochri <i>before</i> he converted, for had he taught the Nochri those laws, he would have known beyond a doubt that the Nochri's motivation was sincere. Hillel deliberately waited until after he converted the Nochri in order to teach Torah to him. (See also Insights to Shabbos 31:3.)
</p><p>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MAY THE SUSPECTED ADULTERESS STAY MARRIED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa - Rebbi):</font></b> If a peddler leaves the house and the 
          woman of the house is putting on a Sinar (undershorts 
          worn for Tzeni'us), this is horrible (surely, she removed 
          them to have Bi'ah), so she must be divorced;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  The same applies if (a peddler leaves and) spit is found 
          on the (under side of the) canopy over the bed (surely, 
          she spat while lying down during Bi'ah), or shoes are 
          found upside-down under the bed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection:</font></b> We should check whose shoes they are (before 
          requiring divorce)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, footprints made by upside-down shoes are 
          found under the bed.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  The Halachah follows Rav and the Halachah follows Rebbi.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection:</font></b> This is a contradiction!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> (Regarding a horrible matter,) when there are 
          unceasing rumors but no witnesses, the Halachah follows 
          Rebbi. When the rumors cease, the Halachah follows Rav, 
          and she must be divorced only if there are witnesses.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What are considered rumors that do not cease?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> It is if they last a day and a half.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they ceased before, that is cessation;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they ceased because people fear the suspected 
               party, this is not cessation.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is only if the suspected one has no enemies in 
               the city. if he has enemies, we attribute the rumors 
               to his enemies (and she may stay married).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one divorced his wife due to bad reports 
          about her, or because of a vow she took, he may not 
          remarry her.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question (Rabah bar Huna):</font></b> If he married her, must he 
          divorce her?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer (Rabah bar Rav Nachman - Mishnah):</font></b> If one was 
          suspected of Bi'ah with a married woman, and they made 
          her husband divorce her, even if the suspected man 
          married her, he must divorce her.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Objection (Rabah bar Huna):</font></b> That is no proof. There, Beis 
          Din forced the original husband to divorce her. I ask 
          about when he chose to divorce her!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> Rabah bar Rav Nachman's text of our Mishnah said 
          'He (willingly) divorced her'.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection:</font></b> Still, the cases are different! The Mishnah 
          teaches that the adulterer must divorce her. Rabah bar 
          Rav Huna asked whether or not the original husband may 
          keep her!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> The comparison is valid. The Mishnah forbids the 
          adulterer to marry her, if he did, he must divorce her. 
          The same applies to her first husband!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Rejection:</font></b> When the adulterer marries her, he supports 
          the rumors. If her husband keeps her, people will think 
          that he investigated and found that the rumors were 
          unfounded.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO PERMITTED A WOMAN MAY NOT MARRY HER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one brought a Get (document of divorce) 
          from overseas and said 'It was written and signed in 
          front of me', he may not marry the woman. (There was an 
          enactment that this declaration validates the Get.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If a man says 'Leah's husband died', 'I killed him' or 
          'we killed him', he may not marry her;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Yehudah says, if he says 'I killed him', she may not 
          remarry. If he says 'We killed him', she may marry.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> Because he brought the Get from 
          overseas and we rely on his declaration, he may not marry 
          her. Had he brought it from within Eretz Yisrael, where 
          we need not rely on him, he could marry her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> When he says that her husband died he may not 
          marry her, even though we do not rely on him. We rely on 
          her!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learned that a woman checks carefully (that he 
               really died) before remarrying.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> There, there is nothing written (supporting his 
          words). Here, there is a written Get.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> The difference between divorce and death 
               is that the Get proves that he is telling the truth.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If he says 'He died', 'I killed him' or 'we 
          killed him', he may not marry her.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Inference:</font></b> He may not marry her, but others may.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> But Rav Yosef taught that if Shimon says 'Ploni 
          forcibly raped me', Shimon may join a second witness to 
          condemn Ploni to death;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he says 'I willingly had homosexual relations 
               with Ploni', Shimon is a Rasha - ' Al Tashes Yadcha 
               Im Rasha Lihyos Ed Chamas' (he is Pasul for 
               testimony).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Edus Ishah (testimony to permit 
               a widow to remarry) is different, for Chachamim were 
               lenient.
<br>
<br>

sjt:
<font><b>1) GIVING A 'GET' IN FRONT OF BEIS DIN</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that a Chacham who refused to annul a woman's oath and thereby caused her to become prohibited to her husband is not permitted to marry that woman after she is divorced, lest he had improper motives when he prohibited her to her husband. However, if a woman performed Mi'un or Chalitzah in front of a Chacham, he is permitted to marry her because Mi'un and Chalitzah may be performed only in front of a Beis Din of three judges; there is no reason to suspect that all three judges had improper motives when they permitted the woman to marry.
</p><p>
Why does the Mishnah omit the obvious case of a Chacham who officiates over a woman's divorce? The Mishnah should say that if a woman received her Get in front of a Chacham, the Chacham may marry her because the procedure is done only in front of a Beis Din, and an entire Beis Din is not suspected of having improper motives.
</p><p>
<b>ANSWER:</b> The <b>PERISHAH</b> (EH 12:8) writes that the Mishnah's omission of the case of a Get proves that a Get does <i>not</i> need to be given in front of a Beis Din. Since the Get would take effect even without the Chacham present, the Chacham contributes nothing to the efficacy of the Get. Hence, there is no reason for the Mishnah to include it in the cases in which the Chacham (or Beis Din) directly effects the woman's allowance to marry others.
</p><p>
Whether or not the procedure of a divorce must be executed in the presence of a Beis Din is the subject of considerable discussion among the Acharonim. The <b>NODA B'YEHUDAH</b> (EH 2:105, 114, 118) issues a novel ruling that a Get must be given in front of a Beis Din. He presents several proofs for his ruling. He cites the <b><b><b>OR</b></b> ZARU'A</b> who rules that a Get may not be given at night. The Noda b'Yehudah asserts that it may not be given at night because it requires a Beis Din, and Beis Din does not convene at night.
</p><p>
The Noda b'Yehudah also cites proof from the words of <b>RASHI</b> in Sanhedrin (2a, DH Mi'unin). Rashi writes that Mi'un must be done in front of a Beis Din because of the principle 'k'Ein d'Oraisa Takun' -- when the Chachamim instituted an enactment, they instituted that it have the same laws and conditions as the Halachah d'Oraisa upon which the enactment is based. When the Chachamim instituted the enactment of Mi'un, they made it similar to the Halachah d'Oraisa (i.e. divorce) and required a Beis Din. Rashi implies that Mi'un must be done in front of a Beis Din because a <i>Get</i> must be given in front of Beis Din.
</p><p>
As further support for the Noda b'Yehudah's ruling, the <b>URIM V'TUMIM</b> (9:2) cites the Targum Yonasan on the verse, 'v'Kasav Lah Sefer Kerisus' -- 'he shall write for her a deed of separation' (Devarim 24:1), who interprets the verse to mean that 'he shall write a Get <i>in front of Beis Din</i>.'
</p><p>
However, the Acharonim point out that the Noda b'Yehudah's ruling that a Get requires a Beis Din seems untenable. An entire Masechta (Gitin) discusses the details of the laws of divorce, as does many chapters in the Shulchan Aruch, and yet no mention is made that a Get must be given in front of Beis Din. On the contrary, the Gemara in a number of places makes the statement, 'Do you think that everyone who divorces his wife does so in front of Beis Din?' (Bava Basra 174b, Erchin 23a).
</p><p>
Although the Noda b'Yehudah addresses these questions, the Acharonim reject his proofs that a Get must be given in front of Beis Din. They write that the reason why a Get may not be given at night is unrelated to the law that a Beis Din may convene only during the day (see <b>BEIS SHMUEL</b> EH 123:9). 
</p><p>
The <b>PISCHEI TESHUVAH</b> argues that when Rashi in Sanhedrin writes that Mi'un must be done in front of Beis Din because of 'k'Ein d'Oraisa Takun,' he does not mean that the enactment of Mi'un is like the Halachah d'Oraisa of <i>Get</i>, but rather that it is like the Halachah d'Oraisa of a <i>Get Me'usah</i> -- a <i>forced</i> Get which the husband gives against his will. Such a Get must be given in front of Beis Din in order to be effective, as the Gemara in Gitin (88b) states. Alternatively, the <b>MAHARAM SHIF</b> in Sanhedrin there explains that Rashi means that the enactment of Mi'un is like the Halachah d'Oraisa of <i>Chalitzah</i>, which requires a Beis Din. Mi'un more closely resembles Chalitzah than it does a Get, because it requires an action on the part of the woman, like Chalitzah, while in the procedure of a Get the woman is passive.
</p><p>
The Acharonim refute the proof from the Targum Yonasan and explain that the Targum does not mean that the Get must be given in front of Beis Din. The Targum says only that the Get must be <i>written</i> in Beis Din. The Targum means that a husband may not write any arbitrary text of a deed of separation that he chooses. Rather, he must write a specific text. He writes the Get in Beis Din so that the judges can instruct him how to write it correctly.
</p><p>

<b>HALACHAH:</b> The Poskim discuss the ruling of the Noda b'Yehudah at length, but they conclude that the Halachah does not follow his ruling because none of the earlier authorities mention the practice to give a Get in front of Beis Din. Nevertheless, the practice is to be stringent and to require that a Get be given in front of Beis Din, both out of respect for the ruling of the Noda b'Yehudah and because the writing and giving over of a Get involve many complicated Halachos, and thus the procedure should be performed in the presence of Beis Din to ensure that it is done properly. 
</p><p>
(A lengthy discussion of this topic and a list of the many authorities who deal with it is found in the <b>PISCHEI TESHUVAH</b> in the beginning of Seder ha'Get, #8, printed in the Shulchan Aruch after Hilchos Gitin, EH 154.)
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> Rav Menasheh taught that a thief 
               mid'Rabanan is Kosher for Edus Ishah, but a thief 
               mid'Oraisa is not. Must we say that Rav Menasheh 
               holds like R. Yehudah (unlike Chachamim)?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Menasheh can hold like Chachamim; she may 
          marry because of Rava's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> A person cannot establish himself to be a 
               Rasha (and disqualify himself from testifying) 
               because he is related to himself (relatives cannot 
               testify).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Suggestion:</font></b> Rav Yosef holds like R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection:</font></b> Rav Yosef can hold like Chachamim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He says that we are more lenient regarding Edus 
               Ishah than about normal testimony. Rav Menasheh 
               holds like R. Yehudah!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Mishnah):</font></b> 'I killed him'...
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> What is different if he says 'I killed him' or 
          'We killed him'?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer (Rav Yehudah):</font></b> The case is, he said that 'I was 
          with those that killed him'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Chachamim):</font></b> A case occurred in which a 
               bandit was walking to his execution. He said 'tell 
               Shimon's wife that I killed her husband', and they 
               permitted her to marry.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yehudah:</font></b> That is no proof - he said 'I was with 
               those that killed him'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> But it says that he was a bandit!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> He was arrested among bandits.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> But it says that he was going to be 
               executed!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Courts of Nochrim execute people without 
               being so careful.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN ONE MAY MARRY THE WOMAN HE PERMITTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a Chacham forbade a woman to her husband 
          due to a vow (he was unable to permit it), he may not 
          marry her. If she did Mi'un or Chalitzah in front of him 
          he may marry her, since he was part of a Beis Din.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> Had he permitted the vow, he could 
          marry her!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion #1:</font></b> The Chacham was alone.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Chiya bar Avin taught that three 
               judges are needed to permit vows!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion #2:</font></b> He was among three.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> If so, he is not suspected!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> if she did Mi'un or Chalitzah in 
                    front of him, he can marry her, since he was 
                    part of a Beis Din.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, he was alone.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> An expert judge can permit vows alone.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If she did Mi'un or Chalitzah...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Inference:</font></b> He can marry her because he was part of a Beis 
          Din, but if there were only two, he could not!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Why is this different than the following?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If witnesses signed on the sale of a 
               field, or a Get, Chachamim were not concerned (that 
               they testified falsely).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> The Mishnah teaches that a Beis Din of three is 
          required for Mi'un and Chalitzah, unlike the opinion that 
          says that two suffice.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> If she married (the Chacham who forbade her due 
          to a vow; Rashi - or the Shali'ach who brought her Get), 
          must he divorce her?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #1 (Rav Kahana):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi and Rav Zuti):</font></b> He need not divorce 
          her.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rabanan (to Rav Zuti):</font></b> Did you hear that this is the 
          Halachah, or is this your reasoning?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Rav Zuti:</font></b> We learn this from the Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one was suspected of Bi'ah with a 
               slave or Nochris and she was freed or converted, he 
               may not marry her. If he married her, he need not 
               divorce her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We do not make him divorce her due to concern lest 
               people talk. The same applies here.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TIMES WHEN WE ARE NOT CONCERNED FOR SUSPICION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> In all these cases (when Reuven may not marry 
          Leah because he permitted her to marry), if he had a wife 
          and she died, he may then marry Leah;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If Leah married someone else and was widowed or divorced, 
          Reuven may then marry her;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  In all cases, Leah is permitted to Reuven's children and 
          brothers.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> This is only if Reuven's wife died, 
          but not if he divorced her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Contradiction (Rav Hillel - Beraisa):</font></b> It is even if he 
          divorced her.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1 (Rav Ashi):</font></b> Reuven may marry Leah only if he 
          had previously quarreled with his wife.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2:</font></b> In both cases, there was no previous quarrel;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven (later) started the quarrel, he may not 
               marry Leah. If his wife started it, he may.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If they married...
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Assumption:</font></b> This is even when a widowed woman remarried 
          and was widowed again, and a divorced woman was divorced 
          again.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Suggestion:</font></b> Our Mishnah is unlike Rebbi, who says that a 
          Chazakah is established after two occurrences (so a woman 
          who was widowed twice may not remarry).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rejection:</font></b> It can be like Rebbi. The Mishnah permits a 
          widowed woman that was later divorced, and a divorced 
          woman that was later widowed.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Mishnah):</font></b> They are all permitted to his sons and 
          brothers.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question (Mishnah):</font></b> A man suspected of Bi'ah with Rachel 
          may not marry her mother, daughter or sister.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why is our case different?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #1:</font></b> Women frequently visit each other (if he 
          marries Rachel's relative, he may come to have Bi'ah with 
          Rachel, and this is Chayavei Kerisus)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Men do not frequently visit each other.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer #2:</font></b> Women do not forbid each other (if Leah's 
          relative has Bi'ah with Leah's husband, this does not 
          forbid Leah to her husband, therefore a woman is not 
          concerned if her husband has Bi'ah with her relatives;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Men do forbid each other (if Levi's wife has Bi'ah 
               with his relative (or any other man), she becomes 
               forbidden to Levi), so a man distances his wife from 
               his relatives.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> If so, the woman should be permitted even to 
          his father!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer:</font></b> She is! The Mishnah teaches a bigger Chidush:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven permitted a woman, not only his father may 
               marry her, in which case Reuven is ashamed to sin 
               with his father's wife;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even Reuven's son may marry her. Even though a man 
               is not ashamed to be with his son's wife, we are not 
               concerned.
<br>
<br><center><font color='ff0000' size='+1'><b>***<b>PEREK ARBA'AH ACHIN</b>***
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>2) </font></b><font color='blue'>SISTERS THAT FALL TOGETHER TO 'YIBUM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If two of four brothers were married to 
          sisters, and these two died, the widows do Chalitzah, not 
          Yibum. If they did Yibum, they must be divorced;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Eliezer says, Beis Shamai allow them to stay married. 
          Beis Hillel say that they must be divorced.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If one of the sisters was an Ervah to (e.g.) Reuven, he 
          is forbidden to her and permitted to her sister. Shimon 
          (the other surviving brother) is forbidden to both;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If a sister is forbidden to a brother due to an Isur 
          Mitzvah or Isur Kedushah, she does Chalitzah but not 
          Yibum;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  If one sister is Ervah to a different brother, each is 
          permitted to the brother to whom she is not Ervah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This fulfills 'when her sister is her Yevamah, she 
               does Chalitzah or Yibum.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara):</font></b> Our Mishnah shows that Yesh Zikah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If not, since the sisters fall from different 
               brothers, each Yavam could do Yibum with one of 
               them!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps Ein Zikah, but it is forbidden to 
          cause the Mitzvah of Yibum to be lost;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we allowed Yibum, perhaps by the time Reuven does 
               Yibum Shimon will die, and the other Yevamah (who is 
               now Reuven's Achos Ishto) will be exempt from Yibum 
               and Chalitzah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> If so, even when (at the beginning) there were 
          three brothers, the sisters should do Chalitzah and not 
          Yibum!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> True! The Tana taught even more.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there were three brothers, if the surviving 
               brother does Yibum, the Mitzvah of Yibum is perforce 
               Batel regarding her sister.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When there are four brothers, one might have thought 
               that we are not concerned that one may die and the 
               Mitzvah will be lost. The Mishnah teaches that this 
               is not so.
<br>
<br><font size='+1' color='darkblue'><center><b>26b----------------------------------------26</b></center></font>
</p><p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> If so, even when there were five brothers, 
          Yibum should not be allowed!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> We are not concerned lest two (of the three 
          surviving) brothers die.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>'CHALITZAH' 'PESULAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav):</font></b> If three sisters fell to Yibum to two brothers, 
          one sister does Chalitzah with one brother, another does 
          Chalitzah with the other brother, and the third sister 
          needs Chalitzah from both of them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rabah):</font></b> Since Rav requires a sister to do Chalitzah with 
          both brothers, he must hold that Yesh Zikah, so the third 
          sister's Chalitzah is Pesulah (Rebbi - since Yibum was 
          forbidden; Tosfos - since the Zikah is weakened), and one 
          who did Chalitzah Pesulah must do Chalitzah with all the 
          brothers.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> If so, also the first two sisters should need 
          Chalitzah from all the brothers!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> If they fell together (the second fell before the 
          first did Chalitzah), that would be true. The case is, 
          each fell after the previous one (did Chalitzah).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One sister fell, and Reuven did Chalitzah with her. 
               Another sister fell, and Shimon did Chalitzah with 
               her. When the third falls, each does Chalitzah to 
               remove his Zikah to her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> But Rav (17b) taught that Ein Zikah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Here he teaches according to the opinion that 
          Yesh Zikah.
<br>

sjt:
<font><b>1) MAY A CHACHAM MARRY A WOMAN WHOSE DIVORCE HE FACILITATED</b></font><b>
<br>QUESTION:</b> The Mishnayos earlier (25a, 25b) teach that a man who enabled a woman to get divorced from her husband is prohibited from marrying her after the divorce. The Chachamim were concerned that he might have had improper motives for permitting her to remarry and that he did not conduct the divorce procedure according to law. This Halachah applies in cases such as a Chacham who did not annul a woman's vow against her husband, thus requiring that she get divorced; a Shali'ach who brought a Get from abroad and testifies to its validity, thereby enabling the woman to remarry; a single witness who testifies that a woman's husband died, thereby permitting her to remarry. The Mishnah here (26a) teaches that if the Chacham, Shali'ach, or single witness was already married at the time he enabled the other woman to remarry, and later his wife died, he is permitted to marry the other woman.
</p><p>
The Gemara infers from the Mishnah that the facilitator of the divorce is permitted to marry the woman later only if his own wife <i>died</i>, but not if he <i>divorced</i> her. If he divorced his wife, the Chachamim suspect that he divorced her in order to marry the woman whom he permitted. The Gemara questions this inference from a Beraisa which states that even if he later divorced his own wife, he may still marry the woman whom he permitted.
</p><p>
The Gemara answers that his allowance to marry the woman he permitted depends on whether he was involved in a dispute with his own wife. The simple meaning of the Gemara is that if the Chacham divorced his wife because of a dispute they had at the time he permitted the other woman to remarry, he is prohibited from marrying the other woman because of the suspicion that at the time he permitted her he intended to divorce his wife, and he permitted her only in order to take her as a wife for himself. If, however, there was no discord between the man and his wife at the time he permitted the other woman, the Chachamim do not suspect that he permitted the other woman in order to marry her (because he presumably was content with his own marriage at the time). The Chachamim suspect him of improper motives only when he permits the other woman at the same time he seeks a new wife; they do not suspect that he will choose to end his presently contented marriage in order to marry the other woman.
</p><p>
<b>RASHI</b> (DH Ha), however, explains the Gemara differently. Rashi explains that when there was discord between the man and his wife at the time he permitted the other woman, the Chachamim <i>permit</i> him to marry her, since he was not aware of the other woman at the time his marital disharmony started. In contrast, when there was no discord between the man and his wife at the time he permitted the other woman, the Chachamim do <i>not</i> permit him to marry her later, when he divorces his wife, because of the suspicion that he harbored intention to marry her when he permitted her (and that is why he later divorced his wife). The Chachamim suspect that even though he was not seeking a new wife at the time he permitted the other woman, when he met her he became more interested in her than in his own wife and decided to end his present marriage in favor of a new one. 
</p><p>
Why does Rashi explain the Gemara in this way? The Mishnayos imply that even when the Chacham was not married at the time he permitted the other woman and had no wife to divorce, he is not allowed to marry the woman because of the concern that he permitted her with improper motives -- even though he did no action that leads to that conclusion (other than marrying the woman). Why does Rashi explain that if the man was involved in an argument with his wife before he permitted the other woman, he is permitted to marry the other woman since there are no grounds to assume that his divorce of his present wife is <i>because</i> of the other woman? Even when he divorces his wife for a pre-existing reason, there still should be grounds to suspect that he had improper motives when he permitted the other woman!
</p><p>
Moreover, the <b>NIMUKEI YOSEF</b> (who explains the Gemara like Rashi) cites the Yerushalmi that says that if his wife was ill at the time he enabled the other woman to remarry, he may <i>not</i> marry that woman. What is the difference between a man who has a dispute with his wife, in which case he is not suspected of permitting the other woman with improper motives, and a man whose wife is ill, in which case he <i>is</i> suspected of permitting the other woman with improper motives? In both cases, there should be grounds to suspect that he permits the other woman with intention to marry her himself. (<b>YAM SHEL SHLOMO</b> 2:21; <b>BEIS SHMUEL</b> EH 12:8; <b>VILNA GA'ON</b> EH 12:9)
</p><p>
<b>ANSWER:</b> The <b>KORBAN NESANEL</b> (2:12:50) answers that the Mishnah here, which does not permit him to marry the other woman after he divorces his wife, nevertheless permits him to marry the other woman after his wife dies. If the prohibition against marrying the other woman applies where discord already exists between the husband and wife, then the law in a case where he divorces his wife should be the same as the law in a case where his wife dies; if the man expected that his wife would become divorced or die, he is prohibited from marrying the other woman since it is assumed that he had improper motives when he permitted her to remarry. Why, then, does the Mishnah limit the allowance to when his wife dies? It must be that there is a difference between death and divorce. In the case of divorce, even if he had no argument with his wife at the time he permitted the other woman to remarry, he is not permitted to marry that woman because he might have divorced his wife intentionally in order to marry the other woman.
</p><p>
Why, though, is the law more <i>lenient</i> in the case of divorce, in which the man (Chacham, Shali'ach, or witness) is permitted to marry the woman he permitted even though he was <i>already</i> quarreling with his wife? As the Nimukei Yosef writes, when his wife was <i>sick</i> at the time he permitted the other woman to remarry, he is <i>not</i> allowed to marry that woman. Why is it not logical to suspect him, in both cases, of harboring intention to marry another woman?
</p><p>
(a) The Korban Nesanel suggests that when discord exists between him and his wife, it is not assumed that he plans to divorce her; couples often argue with each other but do not always get divorced. If, however, his wife is very ill, it is assumed that he plans to marry someone else.
</p><p>
This logic, however, is problematic. The Yerushalmi does not discuss a situation in which his wife is <i>deathly</i> ill, but rather she is merely sick ('Cholanis'). The principle that 'Rov Cholim l'Chayim' teaches that most sick people will survive (Gitin 28a). Accordingly, even if his wife later dies from her illness, it cannot be assumed that he had in mind to marry someone else at the time she was sick when he permitted the other woman to remarry. On the contrary, in the case of divorce, where there was marital discord which eventually led to the divorce, it should be assumed that he intended to divorce her all along, and thus he should be suspected of harboring intentions to marry the woman whom he permitted!
</p><p>
(b) Perhaps Rashi's intention is as follows. Rashi in the Mishnah (DH she'Hayu la'Hem) explains that when the Mishnah states, 'they had wives but the wives died,' it means that the wives died 'after a long time' ('l'Achar Zeman'). What is Rashi's source for this explanation? Perhaps the Mishnah refers to <i>any</i> case in which the man's wife died, whether she died a long time after he permitted the other woman to remarry or she died shortly thereafter. How does Rashi know that the man's wife died specifically 'after a long time'?
</p><p>
(It is unlikely that Rashi's intention is to explain the Chidush of the Yerushalmi, which says that if his wife was already sick and near death at the time he permitted the other woman to remarry, he may not marry the other woman. The Yerushalmi's ruling is unrelated to <i>when</i> she dies; it refers only to whether she was sick or not at the time her husband permitted the other woman to remarry.)
</p><p>
Perhaps Rashi's intention is to explain why the law is more lenient in the case of divorce, where the man is permitted to marry the woman he permitted even though he was already involved in a dispute with his wife. Rashi's words 'l'Achar Zeman' refer <i>not</i> to the case of the dying wife, but to the case of divorce. Rashi means that the reason why the Mishnah omits the case of a man who divorced his wife is that if the man divorced his wife 'after a long time,' the Chachamim suspect that he had in mind to marry the other woman at the time he permitted her and he harbored that thought in his mind until some time had passed and the opportunity to divorce his wife without suspicion arose.
</p><p>
The Beraisa teaches that in such a case, if the man and his wife were involved in a quarrel at the time he enabled the other woman to remarry, he is <i>permitted</i> to marry the other woman when he divorces his wife after a long period of time passes. Since he was quarreling with his wife at the time he permitted the other woman, if he really had in mind to marry the other woman he certainly would have divorced his wife earlier and would not have let so much time pass. That he continued to stay married to her for so long shows that he really did not have in mind to divorce her, and when he permitted the other woman to remarry he did so with proper intentions.
</p><p>
This explains why Rashi says that the Mishnah refers to 'l'Achar Zeman.' If the wife would have died immediately after he permitted the other woman, the <i>Beraisa</i> would not have said that he is permitted to marry the other woman 'even if he divorced his wife,' because he would have been prohibited from marrying the other woman if he divorced his wife right away.
</p><p>
(c) The <b>VILNA GA'ON</b> (EH 12:9) disagrees with the Nimukei Yosef and asserts that the Yerushalmi does <i>not</i> state that in a case where one's wife is ill and then dies, he is prohibited to marry the other woman. Rather, even when his wife is ill when he permits the other woman to remarry, he may marry the other woman after his wife dies since he did not expect that his wife would die. Accordingly, in a case of divorce, even though he and his wife were quarreling at the time he permitted the other woman to remarry, he presumably did not think that their quarrel would lead to divorce. 
</p><p>
The <b>PISCHEI TESHUVAH</b> cites the <b>YESHU'OS YAKOV</b> who suggests a similar approach. He asserts that even according to the Yerushalmi, a man does not expect his wife to die just because she is sick. Rather, the Yerushalmi means that when his wife is sick he needs another wife to tend to his needs, and that is why he is suspected of permitting the other woman with ulterior motives. Accordingly, there is no reason to suspect that when he and his wife were quarreling, he planned to divorce her merely because of the quarrel.
</p><p>


<font><b>2) MAY ONE MARRY A WOMAN WHO WAS DIVORCED TWICE?</b></font><b>
<br>QUESTION:</b> The Mishnah states that in the case of a man who enabled a woman to get divorced (such as the Chacham, Shali'ach, or single witness), the man may marry that woman if she first married someone else and then her second husband died or divorced her.
</p><p>
The Gemara explains that the Mishnah does not mean -- in the case of a single witness who enabled the woman to remarry by testifying that her husband died -- that the witness may marry the woman after her second husband dies (rather, only if he divorces her). Similarly, the Mishnah does not mean -- in the case of a Chacham or Shali'ach who enabled the woman to get divorced -- that the Chacham or Shali'ach may marry the woman after her second husband divorces her (rather, only if he dies). In these two cases, no third man is permitted to marry the woman because of Rebbi's ruling. <b>RASHI</b> explains that Rebbi ruled that 'there is a Chazakah that she causes her husbands to die or to divorce.'
</p><p>
It is clear from the words of Rashi that not only does a Chazakah of two dead husbands prohibit a third man from marrying her, but also a Chazakah of two divorces prohibits a third man from marrying her. This is also the implication of the Gemara which says that the Mishnah does not permit her to remarry after she was divorced twice.
</p><p>
Rashi's explanation, that a woman who was divorced twice is prohibited to marry a third time, is difficult to understand. Why do two divorces prohibit her to a third man? The Gemara later (64b) teaches that Rebbi's logic for prohibiting a woman after her two husbands died is because of 'Ma'ayan Gorem' or 'Mazal Gorem' -- either her Nidah flow is a physical factor which causes her husbands to die, or her inauspicious Mazal causes them to die. The Gemara says that a difference between the two reasons is a case in which her husband died after Erusin, before the woman moved into his home. According to the opinion that 'Ma'ayan Gorem,' the husband's death during Erusin does not count towards the Chazakah that she causes her husbands to die.
</p><p>
Rashi's explanation here apparently does not follow the reasoning of 'Ma'ayan Gorem,' because that reasoning applies only to a case in which the woman's previous two husbands <i>died</i>, not when they divorced her. The reasoning of 'Mazal Gorem,' in contrast, may apply to divorce: after two divorces, it is evident that the woman has an inauspicious Mazal that causes her to get divorced. According to Rashi, however, since 'Ma'ayan Gorem' does not apply when the woman was divorced twice and 'Mazal Gorem' does, why does the Gemara later not mention that the case of divorce is a difference between the two reasons? (<b>VILNA GA'ON</b> and <b>BE'ER HETEV</b>, EH 9:8)
</p><p>
Moreover, even if the woman has established a Chazakah that she causes her husband to divorce her, why does that Chazakah prohibit a third man from marrying her? At worst, she will get divorced a third time. Why should a third man be <i>prohibited</i> from marrying her?
</p><p>
<b>ANSWER:</b> Although the literal meaning of 'Ma'ayan Gorem' does not apply to divorce, perhaps that reasoning does apply in a broader sense: the woman's physical nature is to blame for her recurring divorces (for example, she has an impetuous nature). Therefore, both the opinion that 'Mazal Gorem' and the opinion that 'Ma'ayan Gorem' maintain that two divorces gives her a Chazakah that she will be divorced again, either because of her Mazal or because her physical nature causes her to get into arguments which lead to divorce.
</p><p>
Why, though, is a third man <i>prohibited</i> from marrying a woman who has a Chazakah that she gets divorced? Perhaps the Gemara does not mean that he is prohibited by law to marry her, but that the Chachamim <i>recommended</i> ('Etzah Tovah') that a man not marry a woman who has been divorced twice (<b>YASHRESH YAKOV</b>). The Gemara means that the Chachamim would not tell the woman that she may marry a third man l'Chatchilah if doing so is discouraged and runs counter to the better judgment of the Chachamim.
</p><p>

<b>HALACHAH:</b> The Halachah follows the ruling of Rebbi in a situation of mortal danger, such as in the case of marrying a woman whose two previous husbands died. In such a case, the Chazakah is established after only two (and not three) incidents have occurred. The <b>REMA</b> (EH 9:1) cites <b>RASHI</b> who applies this Chazakah in the case of a woman who was <i>divorced</i> twice, but afterwards he cites <b>TOSFOS</b> (DH a'Gerushin) and other Rishonim who -- despite the implication of the Gemara -- disagree with Rashi and maintain that Rebbi prohibits a woman from remarrying only after she was widowed twice, but not after she was divorced twice. The Rema concludes in accordance with the opinion of Tosfos ('v'Chen Ikar').
</p><p>
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>'CHALITZAH' 'PESULAH' (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Shmuel):</font></b> One brother may do Chalitzah to all of them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Shmuel requires a proper Chalitzah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If (two sisters, each with a Tzarah, fell 
               from two brothers to one surviving brother and) he 
               did Chalitzah to the sisters, their Tzaros are not 
               exempted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If (here) Shimon could do proper Chalitzah (i.e. 
               when Reuven did Chalitzah with the first sister), is 
               it enough for Reuven to do Chalitzah Pesulah?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> Shmuel teaches that one does Chalitzah to all 
          of them, i.e. to the first and third.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> But he said 'to all of them'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Since he does Chalitzah to the majority, this is 
          called all of them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (to Question (b)):</font></b> Shmuel requires proper 
          Chalitzah only to exempt the Tzarah, but the Choletzes 
          herself is exempted in any case.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Shmuel):</font></b> (In the above case when sisters with Tzaros 
          fell to one brother), if he did Chalitzah to the sisters, 
          the Tzaros are not exempted. If he did Chalitzah to the 
          Tzaros, the sisters are exempted;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  (If Tzaros fell to a Yavam and he gave a Get or Ma'amar 
          to one,) if he did Chalitzah to the Yevamah that received 
          a Get or Ma'amar, her Tzarah is not exempted;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  If he did Chalitzah to the Tzarah, the Yevamah that 
          received a Get or Ma'amar is exempted.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> When he does Chalitzah to the sisters, the 
          Tzaros are not exempted because the Chalitzah is Pesulah. 
          Through Zikah, each sister is like Achos Ishto;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also when he does Chalitzah to the Tzaros the 
               sisters should not be exempted, because through 
               Zikah each is the Tzarah of Achos Ishto!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #1:</font></b> Shmuel holds that Ein Zikah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> But Shmuel (18b) taught that Yesh Zikah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Here Shmuel teaches according to the opinion 
               that Ein Zikah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, when he does Chalitzah to the 
               sisters (Leah and then Rachel), why aren't the 
               Tzaros exempted?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Granted, Rachel's Tzarah is not exempted. Since 
                    he already did Chalitzah to Leah, Rachel's 
                    Chalitzah is Pesulah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> But Leah's Chalitzah was valid, so her Tzarah 
                    should be exempted!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Indeed, she is exempted! Shmuel said that 
               the Tzaros are not exempted, i.e. Rachel's Tzarah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> But he said 'the Tzaros (plural)'!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> In all such cases, Rachel's Tzarah is not 
               exempted.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> If so ('does not exempt' means that only 
               one is exempted), when he says that Chalitzah of the 
               Tzaros (e.g. Leah's and then Rachel's) exempts the 
               sisters, he must mean both sisters. But Rachel is 
               not exempted by her Tzarah's Chalitzah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> A man is forbidden to the Tzarah of 
                    the relative of his Chalutzah (the woman he did 
                    Chalitzah with. Therefore, the Chalitzah of 
                    Rachel's Tzarah is Pesulah!)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Shmuel taught that if he started doing 
               Chalitzah with (one of) the sisters, he does not 
               finish with the Tzaros (it is not enough to do 
               Chalitzah to her sister's Tzarah), because a Mishnah 
               forbids a man to Tzaras Krovas Chalutzaso;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> If he started doing Chalitzah with (one of) the 
               Tzaros (e.g. Leah's), he may finish even with the 
               sisters (i.e. Rachel), because a Mishnah teaches 
               that a man is permitted to Krovas Tzaras Chalutzaso.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> We need not change Shmuel's words. 
          (When he does Chalitzah to the sisters, no Tzarah is 
          exempted.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Even though Yesh Zikah,) the Chalitzah of Rachel's 
               Tzarah is considered a proper Chalitzah, since Zikah 
               is not so strong to make the Tzarah like Ervah. 
               (Chachamim decreed only about Achos Zekukaso.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Support (Beraisa):</font></b> If he did Chalitzah to the sisters, 
          the Tzaros are not exempted.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Inference:</font></b> Chalitzah to the Tzaros would exempt the 
          sisters.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is because Yesh Zikah, but Zikah is 
               not so strong to make the Tzarah like Ervah.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Rejection (Rav Aba bar Mamal):</font></b> The Beraisa is like Beis 
          Shamai.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Beis Shamai permit the Tzaros to the 
               brothers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If so, even Yibum should be allowed!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Beraisa is like R. Yochanan ben Nuri, 
               who suggested that we enact that all Tzaros do 
               Chalitzah but not Yibum.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> We learned that they were not able to 
               enact this in time!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Nachman bar Yitzchak):</font></b> Later, it was 
               enacted.
<br>
<br>

sjt:
<font><b>1) WHEN THE PROHIBITION OF 'BITUL MITZVAS YEVAMIM' CAUSES A 'CHALITZAH PESULAH'</b></font><b>
<br>QUESTION:</b> Shmuel rules that if Leah and her Tzarah were married to one man who died childless, and Rachel and her Tzarah were married to the man's brother who also died childless, the third brother to whom they fall to Yibum must do Chalitzah with Leah and Rachel. He also must do a second Chalitzah with their Tzaros, because his Chalitzah with Leah and Rachel was a Chalitzah Pesulah. He may not do Yibum with Leah, the wife of the first brother who died, because she is 'Achos Zekukaso' (according to the opinion that maintains 'Yesh Zikah'), and he may not do Yibum with Rachel (after he has done Chalitzah with Leah), the wife of the second brother who died, because she is 'Achos Chalutzaso.' 
</p><p>
The Gemara says that according to the opinion that maintains 'Ein Zikah,' the Tzarah of Leah does not need Chalitzah because there was no Isur of 'Achos Zekukaso.' <b>RASHI</b> (DH Ela Tzarah d'Leah, and DH Yigmor) explains that the reason why Leah's Tzarah does not need Chalitzah is because the brother could have done Yibum with Leah if he wanted (since she was not prohibited as 'Achos Zekukaso' according to the opinion that maintains 'Ein Zikah'), and therefore Leah's Chalitzah was not a Chalitzah Pesulah.
</p><p>
Why could he have done Yibum if he wanted? Another prohibition was in effect that should have prohibited him from doing Yibum -- 'Isur Bitul Mitzvas Yevamim,' the prohibition against forfeiting the Mitzvah of Yibum. (By doing Yibum with Leah, he would forfeit the opportunity to do the Mitzvah of Yibum with Rachel.) Consequently, the Chalitzah he does with Leah still should be a Chalitzah Pesulah.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Ela Tzarah) explains that although it is true that the brother is not permitted to do Yibum because of the Isur of 'Bitul Mitzvas Yevamim,' nevertheless that Isur is not strong enough to render the Chalitzah a Chalitzah Pesulah. The only prohibitions which cause a Chalitzah to become a Chalitzah Pesulah are 'Achos Zekukaso' and 'Achos Chalutzaso,' since they weaken the bond of Zikah (Tosfos 26b, DH v'Chalitzah).
</p><p>
Tosfos may follow his own opinion as expressed elsewhere. Tosfos (27b, DH Aval Hacha) writes that if a woman was prohibited from doing Yibum because of the Isur of 'Bitul Mitzvas Yevamim,' she is not considered to have been 'Ne'esrah Sha'ah Achas' (forbidden for one moment) such that she remains forbidden forever. Only if the Isur weakens the bond between a Yavam and Yevamah does it cause a permanent Isur of 'Eshes Ach' to take effect because of the rule of 'Ne'esrah.' The Isur of 'Bitul Mitzvas Yevamim' does not weaken the bond. 
</p><p>
(b) <b>RASHI</b>, however, writes that in practice the surviving brother is <i>permitted</i> to do Yibum with Leah. He does not explain, as Tosfos does, that there <i>is</i> an Isur but that Isur does <i>not</i> render her Chalitzah a Chalitzah Pesulah (see <b>RASHBA</b>, and footnote 62 of Rav Aharon Yaffen zt'l to the Ritva). Rashi maintains that <i>any</i> Isur renders a Chalitzah a Chalitzah Pesulah, as Tosfos (26b, DH v'Chalitzah) quotes in the name of Rashi. (Similarly, Rashi (24a) maintains that the Isur of 'Bitul Mitzvas Yevamim' causes an Isur of 'Ne'esrah' to take effect.)
</p><p>
Why, though, is there no Isur of 'Bitul Mitzvas Yevamim' in this case according to Rashi? <b>RABEINU AVRAHAM MIN HA'HAR</b> implies that according to Rashi, Shmuel follows the opinion (18a) that maintains that there is no such Isur of 'Bitul Mitzvas Yevamim.'
</p><p>
(c) The <b>TOSFOS HA'ROSH</b> presents another approach to the words of Rashi. He writes that the Isur of 'Bitul Mitzvas Yevamim' does not apply in this case. By doing Yibum with Leah, the surviving brother does not avert the Mitzvah of Yibum with the wives of Rachel's husband since he still can do the Mitzvah of Chalitzah with Rachel's Tzarah.
</p><p>
While it is true that once he does Yibum with Leah, Rachel will be forbidden to him because of 'Achos Ishto' and obviously he will not be able to do Yibum with her, nevertheless Rachel's Tzarah is not exempt from Chalitzah like any other Tzarah of an Ervah. This is because Rachel became an Ervah <i>after</i> she fell to Yibum. Her Tzarah would have a status of 'Tzaras Ervah' only if Rachel would be an Ervah <i>at the time</i> she falls to Yibum. (The brother still may not do Yibum with the Tzarah of Rachel because she is 'Tzaras Kerovas Yevimto,' who is no different from a 'Tzaras Kerovas Chalutzaso.')
</p><p>
The Tosfos ha'Rosh questions this explanation. There still should be an Isur of 'Bitul Mitzvas Yevamim' because perhaps the Tzarah of Rachel will die, and her death will cause a forfeiture of the Mitzvah of Yibum with the wives of the second deceased brother (since he cannot do Yibum with Rachel because he already did Yibum with her sister, Leah, and Rachel's Tzarah is dead). The Chachamim prohibited doing Yibum even in such a case, in which there exists only a <i>possibility</i> that the brother will forfeit a Mitzvah of Yibum.
</p><p>
The answer to this question may be that Shmuel refers to the case of the Mishnah in which there are <i>four</i> brothers, and thus there are <i>two</i> brothers who remain and who can do Yibum. When one brother does Yibum with Leah, he does not preclude the Mitzvah of Yibum with Rachel, because even if Rachel's Tzarah dies the other brother can do Yibum with Rachel. The Gemara earlier (26b) teaches that when the forfeiture of the Mitzvah of Yibum will occur only if <i>two</i> people die, there is no concern for that possibility and there is no Isur of 'Bitul Mitzvas Yevamim.' (Alternatively, the Isur of 'Bitul Mitzvas Yevamim' applies only when the Mitzvah will be forfeited if the <i>brother</i> dies; the Isur does not apply when the Mitzvah will be forfeited if the <i>Yevamah</i> dies.) (M. Kornfeld)
</p><p>
<br>


lvr: 31
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TO WHICH 'YEVAMAH' SHOULD 'CHALITZAH' BE DONE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If one Yevamah received a Get and another 
          received a Ma'amar, which Chalitzah is better (to exempt 
          the other)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps (Chalitzah of) the recipient of the Get is 
               better, since she started being cast off;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps the recipient of the Ma'amar is 
               preferable, since she is closer to doing Yibum!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Ashi - Mishnah):</font></b> R. Gamliel agrees that a Get 
          takes effect after a Ma'amar, and a Ma'amar after a Get.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Get were more potent, a Ma'amar would not take 
               effect after it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a Ma'amar were more potent, a Get would not take 
               effect after it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Conclusion:</font></b> We must say that they are equal. (Rashi 
               - either exempts the other; Tosfos - either exempts 
               the other.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rav):</font></b> If Rachel fell to Yibum to Levi and then Leah fell 
          to him and he did Chalitzah to one of them, she is 
          permitted. If he then did Chalitzah to the other, she is 
          permitted;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If (Chalitzah was not done and) Rachel died, Leah is 
          permitted to him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> All the more so, if Leah died, Rachel is permitted, 
               for she is a Yevamah who was permitted, became 
               forbidden, and the Isur went away, so she is 
               permitted again.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (R. Yochanan):</font></b> If Leah died, Rachel is permitted. If 
          Rachel died, Leah is forbidden;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Any Yevamah to which we cannot apply 'Yevamah Yavo 
               Aleha' when she fell to Yibum (i.e. she was 
               forbidden) is like the widow of a brother who had 
               children (she may never do Yibum).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Rav agrees with this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If we cannot apply 'Yevamah Yavo Aleha' to a 
               Yevamah when she falls to Yibum, she is like the 
               widow of a brother who had children.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Rav said this only regarding the Isur mid'Oraisa 
          of Achos Ishto. Regarding Zikah mid'Rabanan, we are not 
          stringent.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAN WE EXPLAIN OUR 'MISHNAH'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (R. Yosi bar Chanina - Mishnah):</font></b> If two of four 
          brothers were married to sisters, and the two died, the 
          sisters do Chalitzah, not Yibum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We should tell one brother do Chalitzah with the 
               second sister to fall. The first Yevamah was 
               permitted, forbidden and permitted again, so she may 
               do Yibum!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (R. Yochanan):</font></b> I do not know who taught that 
          Mishnah (it is not a valid Mishnah).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps the Mishnah means that one does 
          Chalitzah!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> It says '<i>Choltzos</i>' (plural).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps this alludes to all such cases (the 
          second sister to fall does Chalitzah)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> It says <i>these</i> do Chalitzah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps it discusses when the first to fall 
          did Chalitzah first!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> The Mishnah says that they do Chalitzah, i.e. 
          l'Chatchilah.
<br>

sjt:
<p>
<font><b>2) AN ENDURING PROHIBITION</b></font><b>
<br>QUESTION:</b> Rav and Rebbi Yochanan disagree about whether a Yevamah remains forbidden when she was forbidden to the brother at the time that she fell to Yibum but then became permitted. Rav maintains that even when a woman was forbidden and then became permitted, she is allowed to do Yibum. Rebbi Yochanan maintains that she may do Yibum only when she was permitted to the brother at the time she fell to Yibum. If she was initially permitted, became forbidden, and then became permitted again, she may do Yibum.
</p><p>
Rebbi Yosi b'Rebbi Chanina challenges Rebbi Yochanan's view from the Mishnah (26a). The Mishnah states that in a case of four brothers, two of whom were married to two sisters and then died childless, the remaining brothers must do Chalitzah with the two widows of their brothers. According to Rebbi Yochanan, the Mishnah should say that one brother should do Chalitzah with the second sister who fell to Yibum, and the other brother may then do Yibum with the first sister. In such a case, at the moment the first sister fell to Yibum she was permitted, and she became forbidden only later when her sister fell to Yibum. When one brother does Chalitzah with the second sister, the first sister becomes permitted again and thus should do Yibum!
</p><p>
Why does the Gemara not ask the same question on the opinion of Rav? Rav says that even when she was forbidden initially and then became permitted, she remains permitted, and thus the Mishnah certainly is problematic according to Rav.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Mesah Rishonah) explains that the Gemara's question indeed applies to the opinion of Rav as well. Perhaps the Gemara does not address its question to Rav because of the principle, 'Rav Tana Hu u'Palig,' Rav has the status of a Tana and may disagree with a Mishnah (as the <b>ME'IRI</b> writes here).
</p><p>
(b) <b>TOSFOS</b> (DH Eisivei) writes that Rav maintains that a Chalitzah Pesulah must be done by all of the brothers. Accordingly, the first sister who fell to Yibum must do Chalitzah with both remaining brothers because she becomes an 'Achos Zekukaso' (and thus cannot do Yibum with any of the brothers) once the other sister falls to Yibum. When both brothers do Chalitzah with the first sister, they no longer may do Yibum with the second sister, who becomes forbidden to them because of 'Achos Chalutzaso.' Hence, Rav would agree with the Halachah of the Mishnah.
</p><p>
In contrast, Rebbi Yochanan maintains that a Chalitzah Pesulah does <i>not</i> need to be done by all of the brothers. Since it suffices for one brother to do such a Chalitzah, the second brother should be able to do Yibum with the other sister, as she is not 'Achos Chalutzaso' (because it was not this brother, but the other brother, who did Chalitzah with her sister). Therefore, the Gemara asks its question only on the opinion of Rebbi Yochanan.
</p><p>
(c) According to <b>RABEINU CHANANEL</b> (cited by Tosfos), Rav does not apply the Isur of 'Ne'esrah' because he maintains 'Ein Zikah,' and thus the first sister did not become forbidden when the second sister fell to Yibum. (The Isur of 'Bitul Mitzvas Yevamim' does not cause a Yevamah to become forbidden forever; see previous Insight.) Accordingly, the Mishnah presents no problem to Rav, because Rav maintains that the Mishnah follows the view of the Tana'im who maintain 'Yesh Zikah,' and that is why the Mishnah applies the Isur of 'Ne'esrah' (and the Isur of 'Achos Zekukaso' remains). 
</p><p>
According to Rebbi Yochanan, however, who maintains 'Yesh Zikah' (see 28a), the Mishnah poses a problem. Rebbi Yochanan asserts that even if 'Yesh Zikah,' in a case where a woman was first permitted, became forbidden (because of 'Achos Zekukaso') and then became permitted again, she is permitted and the Isur does not endure.
</p><p>
(d) The other Rishonim explain that the Gemara later (28a) provides the solution to this question. The Gemara there explains that the proponents of the Isur of 'Bitul Mitzvas Yevamim' and the opinion that 'Ein Zikah' will prohibit Chalitzah with the first Yevamah and Yibum with the second, lest the brothers mistakenly reverse the order and thereby cause a forfeiture of the Mitzvah of Yibum. The Gemara proves that Rebbi Yochanan does not agree with that opinion. Rav, however, may follow those who maintain that there is an Isur of 'Bitul Mitzvas Yevamim.'
</p><p>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN WE EXPLAIN OUR 'MISHNAH'? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps this is a decree lest one do 
          Chalitzah with the first and Yibum with the second (but 
          if Chalitzah was done with the second, the first may do 
          Yibum)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rejection:</font></b> 'They do not do Yibum' connotes that it is 
          always forbidden.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps we decree lest the brother that does 
          not do Yibum die, for it is forbidden to Mevatel the 
          Mitzvah of Yibum!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> R. Yochanan holds that we are not concerned 
          lest one die.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps the Mishnah is R. Eliezer, who says 
          that once a Yevamah became forbidden, she remains 
          forbidden forever!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> Since the Seifa mentions R. Eliezer, he did 
          not teach the Reisha.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps they fell simultaneously, like R. 
          Yosi ha'Galili, who says that this is possible!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> We do not have a Stam Mishnah like R. Yosi 
          ha'Galili.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps we do not know which fell first!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection (Seifa):</font></b> If they both did Yibum, they must 
          divorce their wives.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, the first to do Yibum must divorce her, for 
               she was forbidden to him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Why must the second divorce his wife? He can say 
               that his brother did Yibum with the second, and he 
               did Yibum with the first!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Conclusion:</font></b> This is why R. Yochanan said that he did not 
          know who authored our Mishnah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one sister was Ervah to a Yavam (Reuven), 
          he is forbidden to her, and permitted to marry her 
          sister. The other brother is forbidden to both.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Assumption:</font></b> Reuven's mother-in-law (i.e. the sister that 
          is Ervah to him) fell first.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> Reuven can do Yibum with her sister, and his 
          mother-in-law will then be a Yevamah that was permitted 
          (to the other Yavam), forbidden, and permitted again!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer (Rav Papa):</font></b> The case is, the other sister fell 
          first.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE OPINIONS IN THE 'MISHNAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Eliezer):</font></b> Beis Shamai say (if they did 
          Yibum, they may remain married).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Beraisa - R. Eliezer):</font></b> Beis Shamai permit them to remain 
          married; Beis Hillel say, they must be divorced;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Shimon says, they may remain married;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Aba Sha'ul says, Beis Hillel are more lenient and permit 
          them to remain married, and Beis Shamai said that they 
          must be divorced.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Whose opinion does R. Shimon express?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gives Beis Shamai's opinion, R. Shimon is like 
               R. Eliezer!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he gives Beis Hillel's opinion, he is like Aba 
               Sha'ul!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> He says that Beis Shamai and Beis Hillel did not 
          argue about this.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT EACH CLAUSE TEACHES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one was (Ervah to Reuven, he is forbidden 
          to her and permitted to her sister. Shimon is forbidden 
          to both).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> We learned this in a previous Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A woman who falls to Yibum with her 
               sister (who is Ervah to the Yavam) does Chalitzah or 
               Yibum.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Both Mishnayos are needed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In that Mishnah there is only one Yavam. Here, one 
               might have thought that we forbid Yibum, lest Shimon 
               (who is not related to either Yevamah) do Yibum.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In our Mishnah, Shimon must do Chalitzah, so this 
               shows that Achos Zekukaso is forbidden. There, there 
               is no other brother, so one might have thought that 
               we forbid Yibum lest people think that Achos 
               Zekukaso is permitted.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one was forbidden due to an Isur Mitzvah 
          (or Isur Kedushah, she does Chalitzah but not Yibum).
<br>
<br>

sjt:
<font><b>1) REBBI CHIYA'S HALACHAH AS APPLIED TO THE CASE OF 'BITO'</b></font><b>
<br>QUESTION:</b> Rebbi Chiya states that it is possible to apply the following Halachah to all of the cases in the Mishnah (2a): Two sisters married two brothers, and those two brothers died. One of the sisters is an Ervah to one of the remaining brothers (Levi), but is not an Ervah to the other remaining brother (Yehudah), while the other sister is an Ervah to Yehudah but not to Levi. In that case, each sister may do Yibum or Chalitzah with the brother to whom she is permitted, and there is no problem of 'Eshes Zekukaso' since the other woman is not considered Zekukah to the man to whom she is forbidden. ('V'Kulan Ani Korei ba'Hen....')
</p><p>
The Gemara says that Rebbi Chiya's Halachah can apply to the Ervah of 'Bito' (where each Yevamah is forbidden to one of the brothers because she is his daughter, but she is permitted to the other brother) only when the Yevamah is the brother's daughter through Onsin (rape) and not through Nisu'in (marriage). <b>RASHI</b> (DH b'Onsin) explains that the reason is that it is impossible for two brothers to have been married to the same woman such that they have two daughters who are sisters from the same mother. The second brother cannot marry a woman who was married to the first brother (she is 'Eshes Achiv,' the wife of his brother who left behind children). Therefore, the only possible case in which two brothers have two daughters from the same woman is when they raped that woman and bore the two daughters.
</p><p>
Why does Rashi not give a more basic reason for why the brothers could not have been married to the mother of their daughters? If the brothers had been married to the mother of their daughters, both brothers would be forbidden to both daughters because of the Isur of 'Bas Ishto' (the daughter of one's wife)! It must be that the daughters came from a woman who was raped, and thus 'Bas Ishto' does not prohibit one brother to the daughter of the other brother. This reason would also explain why -- even after the first brother raped the woman -- the second brother also must have raped the woman and could not have been married to her. If the second brother married the woman, there would still be a problem of 'Bas Ishto.' In contrast, if the only problem is 'Eshes Achiv,' then there is no reason to say that the second brother raped the woman and was not married to her. (<b>MAHARSHAL</b>)
</p><p>
Rashi himself seems to have noted this point. Rashi writes that the second brother also raped the woman (and he does not say that only the first brother raped her, while the second brother married her). Why, then, does Rashi not give the reason of 'Bas Ishto' as the reason why it is not possible to have two Yevamos who are the daughters of the two Yevamim through marriage?
</p><p>
This question is raised by <b>TOSFOS</b> and <b>TOSFOS HA'ROSH</b> earlier (9b).
</p><p>
<b>ANSWER:</b> It appears that Rashi follows his own opinion as expressed elsewhere. The Gemara later in Yevamos (94b) records a dispute between Rebbi Yishmael and Rebbi Akiva with regard to the prohibition against marrying one's mother-in-law (Chamoso). According to Rava's understanding of the dispute, Rebbi Akiva rules that the punishment for marrying one's mother-in-law (Sereifah) does <i>not</i> apply to one who marries her <i>after</i> the death of his wife. Rebbi Yishmael argues and rules that the punishment still applies in such a case. <b>RASHI</b> in Sanhedrin (76b), however, writes that according to Rebbi Akiva <i>no</i> Isur Kares or Lo Ta'aseh prohibits one from marrying his wife's mother after the death of his wife. His wife's mother is only 'Asur b'Arur' to him -- the Torah places a curse on a man who marries his mother-in-law; no explicit Torah prohibition forbids it.
</p><p>
The Rishonim discuss whether this leniency also applies to the Isur of 'Bas Ishto' after the death of one's wife. Is the Isur of 'Bas Ishto' comparable to the Isur of 'Chamoso' (since both Isurim stem from the same verse (Vayikra 18:17), which prohibits marrying a mother and her daughter), or does this leniency apply specifically to the case of 'Chamoso' and to no other Isur? (See <b>MAGID MISHNEH</b>, Hilchos Isurei Bi'ah 2:7.)
</p><p>
Perhaps Rashi maintains that after the death of one's wife, he is no longer prohibited to any of her daughters (who are not his own daughters). That is, the Isur of 'Bas Ishto' is removed after the death of one's wife. Accordingly, a case in which two daughters were born to two brothers from the same woman to whom <i>both</i> brothers had been married -- and yet the daughters are not prohibited to both brothers because of 'Bas Ishto' -- is easy to find. Such a case exists when Levi married the woman, she bore him a daughter, they were divorced, and after her divorce from Levi she married the second brother, Yehudah, and bore him a daughter -- and then she died. Only Levi's actual daughter is forbidden to him (because of 'Bito'), while Yehudah's daughter is not forbidden to Levi as 'Bas Ishto' since her mother (his wife) is no longer alive.
</p><p>
Rashi writes that the second brother <i>raped</i> the woman, and not the he was married to her, in order to simplify the case by not involving the death of the woman. Nevertheless, even if the second brother would have been married to the woman, it would have been possible for each brother to be permitted to the daughter of the other brother -- such as when the mother of the girls died (after her marriage to the second brother).
</p><p>
This approach answers another question. Why do Rav Yehudah and Abaye say that Rebbi Chiya's Halachah does not apply to all of the cases in the Mishnah because 'he refers only to cases of Nisu'in'? Rashi earlier (9b) explains that they mean that the <i>Mishnah</i> discusses only cases of Nisu'in. This explanation is problematic, because Rashi himself (2a) explains that the Mishnah must be referring to cases of Onsin (rape) since it lists 'Bito' and 'Bas Ishto' as separate Arayos! If 'Bito' means one's daughter through marriage, then that daughter is already forbidden to him because of 'Bas Ishto,' which is mentioned separately in the Mishnah.
</p><p>
The answer to this question is that according to Rav Yehudah and Abaye, the Mishnah indeed may be referring to cases of Nisu'in as well, where 'Bito' was born from one's wife and not from a woman one raped. Nevertheless, 'Bito' is not included in the Ervah of 'Bas Ishto' because in a case in which one's wife died, the Isur of 'Bas Ishto' is removed, yet the Isur of 'Bito' remains. (Rashi on the Mishnah (2a), however, explains the Mishnah according to Rebbi Chiya; see Insights to Yevamos 2:1 and 9:3.)
</p><p>


<font><b>2) REBBI CHIYA'S HALACHAH AS APPLIED TO THE CASE OF 'ESHES ACHIV SHE'LO HAYAH B'OLAMO'</b></font><b>
<br>QUESTION:</b> Abaye states that Rebbi Chiya's Halachah does not apply to the Ervah of 'Eshes Achiv she'Lo Hayah b'Olamo' because 'he does not discuss cases subject to dispute' and the case of 'Eshes Achiv she'Lo Hayah b'Olamo' is subject to dispute. Rebbi Chiya's Halachah will apply to such a case only according to Rebbi Shimon, and not according to the Rabanan.
</p><p>
<b>RASHI</b> explains that when Abaye says that 'he does not discuss cases subject to dispute,' he refers to <i>Rebbi Chiya</i>, and not to the <i>Mishnah</i>, and he means that Rebbi Chiya does not refer to cases subject to dispute.
</p><p>
Why does Rashi explain that Abaye means that <i>Rebbi Chiya</i> does not refer to cases subject to dispute? When Abaye earlier says that 'he refers only to cases of Nisu'in,' Rashi explains that 'he' refers to the <i>Mishnah</i> and not to Rebbi Chiya! Why does Rashi here explain that Abaye's statement (that 'he does not discuss cases subject to dispute') refers to Rebbi Chiya?
</p><p>
Moreover, the Gemara earlier (9b) attempts to support the assertion that the Mishnah should have included in its list the case of 'Imo Anusas Aviv' (a case which is subject to dispute), and it cites Rebbi Chiya's Halachah as proof that the Mishnah discusses cases of dispute. According to Rashi, however, Rebbi Chiya does not discuss cases subject to dispute! 
</p><p>
<b>ANSWER:</b> In the Gemara here, Abaye says that although the Mishnah discusses cases of Nisu'in, Rebbi Chiya applies his Halachah even to the Mishnah's case of 'Bito.' Although his Halachah does not apply to 'Bito' born through Nisu'in (the case the Mishnah discusses) but only to 'Bito' born from Onsin (which the Mishnah does not discuss), nevertheless Rebbi Chiya mentions that his Halachah applies to all of the cases in the Mishnah because there <i>is</i> a type of 'Bito' to which his Halachah does apply ('Bito' through Onsin).
</p><p>
If Rebbi Chiya discusses any possible case of each Ervah mentioned in the Mishnah, then even if the Mishnah <i>does</i> discuss cases of Machlokes, Rebbi Chiya still can apply his Halachah to 'Eshes Achiv she'Lo Hayah b'Olamo,' even though it is not the same case as that mentioned in the Mishnah (i.e. it is Rebbi Shimon's case, not the Rabanan's). Accordingly, what difference does it make whether or not the Mishnah discusses cases of Machlokes?
</p><p>
It must be that Abaye means that Rebbi Chiya teaches only the cases which are relevant l'Halachah, even those not mentioned in the Mishnah (such as 'Bito' through Onsin); he does <i>not</i> discuss cases which follow only one opinion which the Halachah might not necessarily follow (such as Rebbi Shimon's opinion of 'Eshes Achiv she'Lo Hayah b'Olamo').
</p><p>
The Gemara earlier (9b) does not contradict this interpretation. On the contrary, the Gemara there is easier to understand if it means, as Rashi explains here, that 'he does not discuss cases subject to dispute' refers to Rebbi Chiya and <i>not</i> to the Mishnah (which <i>does</i> discuss cases subject to dispute). This is because the Gemara there says that the Sugya here proves that the Mishnah must be discussing cases subject to dispute. The Gemara there concludes that Rebbi (who says that the Mishnah is not discussing cases subject to dispute) disagrees with Rebbi Chiya. How, though, does the Gemara there infer from the Sugya here that the Mishnah discusses cases of Machlokes? It is only Rav Safra who says that! Rav Yehudah and Abaye, in contrast, seem to conclude otherwise, that the Mishnah does <i>not</i> refer to cases of Machlokes!
</p><p>
According to Rashi's explanation, the answer is clear. Rav Safra and Abaye argue only whether <i>Rebbi Chiya</i> discusses cases of Machlokes. They do not argue whether the <i>Mishnah</i> discusses such cases. Abaye says that Rebbi Chiya <i>does</i> discuss the case of 'Eshes Achiv she'Lo Hayah b'Olamo' even though his Halachah applies to that case only according to Rebbi Shimon, <i>and</i> even though Abaye maintains that Rebbi Chiya only mentions the exact cases that are mentioned in the Mishnah. It must be that the Mishnah <i>does</i> include cases of Machlokes, and Rav Safra and Abaye do not argue about that point. The Gemara there is justified, therefore, when it cites proof against Rebbi that the Mishnah discusses cases of Machlokes.
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> We already learned this in a Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If she is forbidden because of Mitzvah or 
               Kedushah, she does Chalitzah, not Yibum.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> There, Leah fell alone to Yibum. Here, her sister 
          Rachel fell with her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought Chachamim consider an Isur 
               Mitzvah to be like Ervah to allow Rachel to do 
               Yibum. Our Mishnah teaches that it does not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Since mid'Oraisa Leah falls to Yibum, Rachel 
               is forbidden due to Achos Zekukaso.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one sister was Ervah to one Yavam, and the 
          other was Ervah to the other, each Yavam may do Yibum 
          with the Yevamah that is not Ervah to him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> We already learned this in the Reisha! What 
          difference does it make if only one is Ervah to a Yavam, 
          or if each is Ervah to a different Yavam?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Had it taught only about when only one is Ervah, 
          we would have thought that only there Yibum is allowed. 
          Since the other Yevamah must do Chalitzah, this shows 
          that Achos Zekukaso is forbidden (but here we would 
          decree to forbid Yibum, lest people think that Achos 
          Zekukaso is permitted);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about when each is Ervah, we 
               would have thought that only then Yibum is allowed. 
               Since each Yavam is forbidden to a Yevamah, people 
               realize that there is no Achos Zekukaso, due to 
               Ervah. But when there is only one Ervah, perhaps we 
               decree not to do Yibum.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Mishnah):</font></b> This is the case in which the sister (of 
          Ervah), who also falls to Yibum, may do Chalitzah or 
          Yibum.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> What does this come to exclude?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> It excludes when each sister is an Isur Mitzvah 
          to a different Yavam.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> We already learned about when one is an Isur 
          Mitzvah to a Yavam. Surely this is the same!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> We might have thought that there we do not 
          consider the Isur like Ervah, lest the other Yevamah do 
          Yibum (and she is Achos Zekukaso). Here, we would 
          consider each Isur Mitzvah to be Ervah, and each may do 
          Yibum with the other Yavam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SISTERS THAT FALL TO 'YIBUM' TOGETHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yehudah citing Rav):</font></b> For every Ervah (in the Mishnah 
          (2a)), we can find that the Yevamah forbidden to one 
          Yavam due to that Ervah is permitted to the other Yavam; 
          and when they are sisters (from different brothers), they 
          do Chalitzah or Yibum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah himself applies this only to the Arayos 
               starting with one's mother-in-law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He does not apply this to the first six Arayos, 
               since (they are branches of the Isur of Bito, and) 
               the case of Bito is only found through rape, not 
               through marriage. The Tana does not discuss such 
               cases.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Abaye says that even Bito is included, even though it 
          does not arise through marriage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye excludes Eshes Achiv she'Lo Hayah b'Olamo, 
               since it arises only according to R. Shimon;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Tana does not discuss cases subject to dispute.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Rav Safra includes even this case. It arises with six 
          brothers, according to R. Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A way to remember the case is 'Died, was born, did 
               Yibum; died, was born, did Yibum'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reuven and Shimon were married to two sisters; Levi 
               and Yehudah were married to two unrelated women. 
               Reuven died, Yisachar was born, Levi did Yibum; 
               Shimon died, Zevulun was born, and Yehudah did 
               Yibum. Levi and Yehudah died without children.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Reuven's widow is forbidden to Yisachar and Shimon's 
          widow is forbidden to Zevulun; they are sisters.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> This is true even if Yehudah didn't do Yibum!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> We discuss when Yehudah did Yibum so that each 
          Tzarah will be permitted to a different brother.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> This shows that the case applies to a Tzarah. 
          How can it apply to Tzaras Tzarah?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> Later, Gad and Asher (other brothers) did Yibum 
          with the Tzaros.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If two of three brothers were married to 
          sisters, or to a woman and her daughter or granddaughter; 
          (if the two brothers die) the Yevamos do Chalitzah but 
          not Yibum;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  R. Shimon says, there is no need for Chalitzah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  If one of the sisters was forbidden to a Yavam due to 
          Ervah, he is forbidden to her and permitted to her 
          sister;
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  If one of the sisters was forbidden to a Yavam because of 
          Mitzvah or Kedushah, they do Chalitzah, not Yibum.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Gemara - Beraisa):</font></b> R. Shimon exempts from Yibum and 
          Chalitzah - 'Do not marry a woman with her sister to be 
          rivals' - when they are rivals to each other (both fell 
          to Yibum to the same brother), you cannot marry even one 
          of them.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one of them was forbidden because of 
          Ervah...
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> We already learned this (in the first Mishnah 
          of our Perek)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> It is taught to teach R. Shimon's opinion (that 
          he agrees);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (When neither sister is Ervah to a brother,) R. 
               Shimon forbids sisters to do Yibum. One might have 
               thought that we should decree when one is Ervah due 
               to when neither is.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SISTERS THAT FALL TO 'YIBUM' TOGETHER (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If one is forbidden by an Isur Mitzvah or 
          Kedushah... (they do Chalitzah, not Yibum).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> R. Shimon said that sisters do not do Chalitzah 
          or Yibum!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> It is a decree that they do Chalitzah, due to 
          Isurei Mitzvah or Isurei Kedushah who fall without a 
          sister.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> This explains why the one forbidden (Mitzvah or 
          Kedushah) needs Chalitzah. Why does her sister also need 
          Chalitzah?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> We decree about her sister due to her (lest 
          people think that also she does not need Chalitzah).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Regarding Ervah, we do not decree!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Ervah is well known.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT DOES 'MA'AMAR' DO?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven and Shimon were married to Rachel and 
          Leah (sisters); Levi (another brother) was single. Reuven 
          died, Levi gave a Ma'amar to Rachel, and then Shimon 
          died;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Beis Shamai say, Levi keeps his wife (Rachel). Leah is 
          Achos Ishto (she does not need even Chalitzah);
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Beis Hillel say, he sends his wife away with a Get and 
          Chalitzah, and does Chalitzah to Leah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In this case, they said that 'Woe to him! He loses 
               his wife and his brother's wife.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> What case does <i>this</i> come to exclude?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> This teaches unlike R. Yehoshua (109a. If a man 
          was married mid'Rabanan to Leah, an orphaned minor, and 
          her sister fell to him to Yibum mid'Oraisa, R. Yehoshua 
          says, he cannot keep either one.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we follow R. Eliezer (we counsel Leah to do 
               Mi'un) or R. Gamliel (if Leah does not do Mi'un, 
               when she matures her marriage becomes mid'Oraisa, 
               and the Yevamah is exempt even Chalitzah for she is 
               Achos Ishto).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Version #1 (R. Elazar):</font></b> Do not say that Beis Shamai hold 
          that a Ma'amar totally acquires a Yevamah, and afterwards 
          he can divorce her with a Get (without Chalitzah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, a Ma'amar acquires only to dispel the Tzarah 
               (so Rachel will not be considered Achos Zekukaso).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Support (R. Avin - Mishnah (26a) - Beis Shamai):</font></b> If they 
          both did Yibum, they may remain married.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only b'Di'eved.
<br>
<br>

sjt:
<font><b>1) THE REQUIREMENT THAT AN 'ISUR ERVAH' DO CHALITZAH</b></font><b>
<br>QUESTION:</b> 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.
</p><p>
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 <i>or</i> Chalitzah!
</p><p>
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.
</p><p>
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.
</p><p>
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?
</p><p>
<b>ANSWERS: RASHI</b> (in two consecutive comments) explains the Gemara's question in two different ways. (The <b>MAHARSHA</b> 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 <b>TOSFOS YESHANIM</b>.
</p><p>
(a) Rashi's first answer is the same as that of <b>TOSFOS</b> and the first answer of the <b>TOSFOS YESHANIM</b>. 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 <i>Ervah</i> to do Chalitzah. The reason she should need Chalitzah is the same reason for which Chalitzah was instituted for the <i>Tzarah</i> 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.
</p><p>
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.'
</p><p>
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.
</p><p>
(b) <b>RASHI</b> and the <b>TOSFOS YESHANIM</b> 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 <i>not</i> an Ervah from doing <i>Yibum</i>, 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). 
</p><p>
(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)
</p><p>
<br>


lvr: 31
dfh: b
trd:
</p><p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Ma'amar totally acquires, each brother may give a 
               Ma'amar to a Yevamah and acquire her l'Chatchilah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> Even if Ma'amar only dispels the Tzarah, this 
          is difficult! Each brother can give a Ma'amar to a 
          Yevamah and dismiss her Tzarah, permitting Yibum 
          l'Chatchilah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You must say that only a Ma'amar of Heter dispels 
               the Tzarah, not a Ma'amar of Isur (e.g. to Achos 
               Zekukaso);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Likewise, only a Ma'amar of Heter totally acquires, 
               not a Ma'amar of Isur!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Version #2 - Rav Ashi (R. Elazar):</font></b> Do not say that Beis 
          Shamai holds that a Ma'amar totally dispels, and the 
          Tzarah does not need even Chalitzah. Rather, Ma'amar 
          dispels partially.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Support (R. Avin - Mishnah - Beis Shamai):</font></b> If they both 
          did Yibum, they may remain married.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only b'Di'eved. If Ma'amar totally dispels, 
               each brother may give a Ma'amar to a Yevamah and 
               dispel her Tzarah, to allow Yibum l'Chatchilah!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Objection:</font></b> In our Mishnah, Beis Shamai says that since he 
          gave a Ma'amar, when her sister falls she is exempt due 
          to Achos Ishto!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You must say that Ma'amar fully dispels the Tzarah 
               only if the Yevamah could do even Yibum.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES 'MA'AMAR' MAKE 'KIDUSHIN' OR 'NISU'IN'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rava):</font></b> According to Beis Shamai, does Ma'amar 
          make Kidushin or Nisu'in?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> What difference does it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> If it makes Nisu'in, he inherits her, 
               must become Tamei to bury her, and can annul her 
               vows.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (R. Chiya's Beraisa):</font></b> If an Arusah (a wife 
               during Kidushin) died, her husband is not an Onen 
               (forbidden to Kodshim mid'Oraisa that day, and 
               exempt from Mitzvos until burial) over her. He may 
               (or need) not become Tamei for her, and he does not 
               inherit her. If he died, she is not an Onenes over 
               him and need not become Tamei for him. She collects 
               a Kesuvah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he only gave her a Ma'amar (which is only 
                    mid'Rabanan), all the more so he does not 
                    inherit or become Tamei for her!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2:</font></b> If Ma'amar makes Kidushin, she must be 
               given over (willingly) to Chupah. If it makes 
               Nisu'in, she need not.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> Without a Ma'amar, the Torah permits 
               Yibum against her will - 'Yevamah Yavo Aleha'. 
               Surely a Ma'amar does not change this!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> Indeed, perhaps a Ma'amar changes 
               this! When he gives a Ma'amar, the Zikah of Yibum 
               departs, and she is like an Arusah (awaiting 
               Nisu'in).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Beraisa - R. Eliezer):</font></b> A Yavam can annul the vows 
          of a Yevamah, whether there are one or two Yevamim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehoshua says, he can annul if there is one 
               Yavam, but not if there are two;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, even if there is one Yavam he cannot.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Granted, R. Akiva holds that Ein Zikah 
               even when there is one Yavam, and R. Yehoshua holds 
               that Yesh Zikah when there is one Yavam, but not 
               when there are two;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But how could R. Eliezer hold that Yesh Zikah 
                    when there are two Yevamim? (We cannot consider 
                    her to be Mekudeshes to both!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (R. Ami):</font></b> The case is, he gave a Ma'amar. 
               This is like Beis Shamai, who say that a Ma'amar 
               acquires totally.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Summation of answer:</font></b> If Ma'amar makes Nisu'in, this 
               explains why he can annul her vows. But if it makes 
               only Kidushin why can he?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> The father and husband of a Na'arah 
                    Me'orasah (together) can annul her vows.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection (Rav Nachman bar Yitzchak):</font></b> (Perhaps Ma'amar 
          makes Kidushin.) R. Eliezer said that he can annul her 
          vows, i.e. together with her father!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> According to R. Elazar, who says that Ma'amar 
          only dismisses the Tzarah, why can he annul in 
          partnership?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1:</font></b> R. Elazar meant that Ma'amar does not fully 
          acquire regarding Zikas Yibum. If he will not do Yibum, 
          Chalitzah is required. He could agree that it acquires 
          totally regarding vows!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 - Counter-question:</font></b> Rav Nachman bar Yitzchak 
          says that the Yavam and father annul together. But the 
          Beraisa says 'he annuls', not 'they annul'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that she took him to Beis Din 
               (because he did not want to do Yibum nor Chalitzah), 
               and Beis Din obligated him to feed her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Pinchas):</font></b> A woman vows on condition that her 
               husband will approve. (Here, since the Yavam feeds 
               her, she vows on condition that he will approve.)
<br>

sjt:
<p>
<font><b>2) TO WHAT EXTENT IS 'MA'AMAR' CONSIDERED MARRIAGE</b></font><b>
<br>QUESTION:</b> 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').
</p><p>
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 <i>l'Chatchilah</i>. It must be that Ma'amar is not Koneh the Yevamah completely. 
</p><p>
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.'
</p><p>
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).
</p><p>
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 <i>partially</i>. 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.
</p><p>
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.
</p><p>
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. 
</p><p>
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). 
</p><p>
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? (<b>TOSFOS</b> 29a, DH Ela)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ARUCH LA'NER</b> 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 <i>Ma'amar</i> 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.
</p><p>
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 <i>Yibum</i> cannot be performed with the same woman. (That is, even according to the opinion that maintains 'Ein Zikah,' <i>Yibum</i> cannot be done with the first sister because of the Isur of 'Bitul Mitzvas Yevamim.')
</p><p>
<b>RASHI</b>, 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 <i>Yibum</i> with each sister. Accordingly, the Aruch la'Ner's approach does not resolve the problem according to the explanation of Rashi.
</p><p>
(b) The difference between the two versions may be whether Ma'amar takes effect <i>in the first place</i> with a woman with whom Yibum may not be done. The first version explains the opinion that Ma'amar is a full-fledged <i>Kinyan</i>. 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.
</p><p>
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)
</p><p>
(c) <b>TOSFOS</b> 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!
</p><p>
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 <i>afterwards</i> 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.)
</p><p>


<font><b>3) THE STATUS OF THE 'KINYAN' OF 'MA'AMAR' ACCORDING TO BEIS SHAMAI: MID'ORAISA OR MID'RABANAN?</b></font><b>
<br>QUESTION:</b> 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.
</p><p>
<b>RASHI</b> 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 <b>MAHARSHA</b> and <b>RASHBA</b>.)
</p><p>
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!
</p><p>
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? (<b>TOSFOS</b> 29a, DH Beis Shamai)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> 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 <i>would</i> have been Chayav Sekilah had she been married with Erusin to the other man).
</p><p>
However, the <b>TOSFOS HA'ROSH</b> and others understand Rashi's words in their literal sense, that Ma'amar is only mid'Rabanan.
</p><p>
(b) The <b>KESONES PASIM</b> (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 <i>Ishus</i> 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).
</p><p>
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 <i>Yavo Aleha</i>' (Devarim 25:5). Rashi seems to refer to the Kinyan of Yibum when he says that Ma'amar works only mid'Rabanan.
</p><p>
(c) The <b>ARUCH LA'NER</b> (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.'
</p><p>
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.
</p><p>
(d) Perhaps Beis Shamai maintains that the procedure of Ma'amar is mid'Rabanan, and it is the <i>Zikah</i> which gives a woman the status of 'Kenusah' (married) <i>mid'Oraisa</i>, 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 <b>RIVAN</b> and <b>RABEINU AVRAHAM MIN HA'HAR</b>). 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.
</p><p>
However, Beis Shamai maintains that the <i>Chachamim</i> decreed that Zikah <i>not</i> be 'k'Kenusah' and that it not make the woman married to the Yavam. The Chachamim enacted that she be considered <i>not</i> married to the Yavam (that is, they enacted that the situation be treated <i>as though</i> 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 <i>not</i> 'k'Kenusah' and which requires the Tzarah to do Chalitzah.
<br> 
<br>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)
</p><p>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>'ZIKAH' TO TWO BROTHERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven, Shimon and Levi (brothers) were 
          married to Rachel and Leah (sisters) and Esther (an 
          unrelated woman), respectively. Reuven died. Levi did 
          Yibum, then he died. Rachel is exempt (from Yibum and 
          Chalitzah) because she is Achos Ishto to Shimon (his 
          wife's sister). Esther is exempt because she is Tzaras 
          Ervah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Had Levi not done Yibum, but gave a Ma'amar and then 
          died, Esther would do Chalitzah, but not Yibum.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> The Seifa depends on the Ma'amar. If 
          not for the Ma'amar, she could do Yibum!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> This teaches that Ein Zikah, even 
               when there is one Yavam. (If Yesh Zikah, she would 
               be Tzaras Ervah through Zikah!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven and Shimon were married to Rachel and 
          Leah (sisters) and Levi was married to Esther. Levi died. 
          Reuven did Yibum, then he died. Rachel is exempt because 
          she is Shimon's Achos Ishto; Esther is exempt because she 
          is Rachel's Tzarah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  Had Reuven not done Yibum but gave a Ma'amar before he 
          died, Esther would do Chalitzah, not Yibum.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> We already know this from the Reisha 
          (the previous Mishnah)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Reisha, Achos Ishto was a Tzarah to Esther 
               (i.e. she married Levi after Esther), and Esther was 
               forbidden. Here, Esther is a Tzarah to Achos Ishto, 
               all the more so Esther is forbidden!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> The Tana first taught the Seifa, thinking that in 
          the Reisha, Esther would be permitted. Later, he realized 
          that even she is forbidden even in the Reisha.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  Since the Reisha is the greater Chidush, it is dear to 
          the Tana, so he taught it first. The Seifa (even though 
          now it is not needed) was retained in the Mishnah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONCE A 'YEVAMAH' IS FORBIDDEN, SHE IS ALWAYS FORBIDDEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven and Shimon were married to Rachel and 
          Leah (sisters) and Levi was married to Esther. Reuven 
          died. Levi did Yibum. Leah died, then Levi died. Rachel 
          is forever forbidden to the Yavam, since she was once 
          forbidden.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara - Rav Yehudah):</font></b> If we cannot apply 'Yevamah Yavo 
          Aleha' when a Yevamah falls to Yibum, she is like Eshes 
          Ach when the brother died with children; she is 
          forbidden.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> The Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> She is forever forbidden to the Yavam 
               since she was once forbidden.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that this is only when the 
          Isur remained throughout the first fall to Yibum; but 
          here the Isur went away during the first fall to Yibum, 
          so she is permitted!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah taught that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Also this we learn from a Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Two brothers were married to sisters. One 
               brother died, then the other brother's wife died. 
               The Yevamah is forever forbidden to the Yavam, since 
               she was once forbidden.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> There, she could not do Yibum with any brother 
          (when she fell). Here, when Rachel fell she could have 
          done Yibum with Levi (but was forbidden to Shimon). 
          Therefore, one might have thought that when the Isur to 
          Shimon (Achos Ishto) goes away, she is permitted to him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>'ZIKAH' AND THE FALL TO 'YIBUM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven and Shimon were married to Rachel and 
          Leah (sisters) and Levi was married to Esther. Reuven 
          divorced Rachel, Levi died, Shimon did Yibum, then he 
          died;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In this case they said that 'If an Ervah died or was 
               divorced, the Tzaros are permitted'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara) Inference:</font></b> Esther is permitted because the 
          divorce preceded Levi's death. Had he died before, Esther 
          would be forbidden.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rav Ashi):</font></b> This shows that Yesh Zikah, even when there 
          are two brothers. (When Levi dies, due to Zikah we 
          immediately consider Esther to be Shimon's wife. When 
          Shimon dies she is considered Tzaras Ervah to Reuven, for 
          through Zikah she was the Tzarah of Achos Ishto (Leah, 
          before the divorce).)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Above, Rav Nachman deduced that Ein Zikah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Ashi explains that in that Mishnah, she 
          cannot do Yibum even if no Ma'amar was given;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It mentions Ma'amar to teach unlike Beis Shamai, who 
               say that Ma'amar fully acquires.
<br>
<br>

sjt:
<font><b>1) PERFORMING YIBUM AFTER AN 'ISUR ERVAH' IS REMOVED</b></font><b>
<br>OPINIONS:</b> The Mishnah describes a case in which a Yevamah was forbidden to one of the brothers of her husband, and then the prohibition was removed. The Mishnah states that since she was forbidden to that brother for one moment, she remains forbidden to him forever.
</p><p>
The Mishnah refers to a case in which two brothers (Reuven and Shimon) are married to two sisters (Leah and Rachel), and a third brother (Levi) is married to an unrelated woman. When Reuven dies childless, his wife, Leah, falls to Levi for Yibum. She may not do Yibum with Shimon because she is an Ervah to him ('Achos Ishto,' the sister of his wife, Rachel). After Levi does Yibum with Leah, the wife of Shimon dies. Then, Levi dies childless. Although Shimon's wife died and thus Leah is no longer an Ervah of 'Achos Ishto' to Shimon, Leah nevertheless remains forbidden to him because for one moment -- at the time she first fell to Yibum -- she was an Ervah to him, and thus she remains an 'Eshes Ach she'Lo b'Makom Mitzvah.'
</p><p>
Rav Yehudah in the name of Rav says that the same Halachah applies during the <i>first</i> Nefilah to Yibum. If, at the time the woman fell to Yibum for the first time, the Yavam was married to her sister, then even if the sister dies afterwards the woman remains exempt from Yibum. The Gemara says that one might have thought that there is a difference between when there are other brothers who can do Yibum with the Yevamah and when there are no other brothers except the one to whom the Yevamah is an Ervah. When there are other brothers, one might have thought that she may do Yibum with Shimon if her sister, Shimon's wife, dies.
</p><p>
Why does the presence of other brothers give more reason to assume that the Yevamah may do Yibum with her sister's husband after her sister dies?
</p><p>
(a) <b>RASHI</b> implies that the logic for the difference is that since there is an existing Zikah (due to the presence of the other brother to whom the woman is Zekukah), when the brother to whom she was forbidden until now becomes eligible for Yibum with her, the Zikah extends to that brother as well. In contrast, when -- at the time of the death of her husband -- there was no other brother to whom Zikah applied, Zikah cannot be created from nothing when her prohibition to the surviving brother is removed.
</p><p>
(b) Another explanation may be suggested based on the words of <b>TOSFOS</b> earlier (2a, DH v'Achos Ishto). According to Tosfos, Zikah may take effect either at the moment the husband dies or at any time after he dies. The Mishnah here asserts that his wife remains forbidden to the brothers forever when she was forbidden at the moment she fell to Yibum <i>not</i> because Zikah cannot take effect after the moment of her husband's death. Rather, the reason is that 'Deracheha Darchei No'am' -- the ways of the Torah are ways of pleasantness, and it would not be pleasant for a woman who was exempt from Yibum (and was permitted to remarry) to become obligated to do Yibum (and need to separate from her husband if she already remarried) at a later time. For this reason, if a Yevamah was forbidden to the Yavam at the time of her husband's death, she remains forbidden to him regardless of any eventuality, and she is permitted to marry others. (The Gemara mentions the logic of 'Darchei No'am' later (87b) with regard to a case in which a man died and left behind a child, but then the child died. Since, at the time of the man's death, there was no obligation for his widow to do Yibum (because he left behind living offspring), his wife cannot become obligated to do Yibum when the child dies. Once she was already permitted to marry someone else, she remains permitted.)
</p><p>
According to this approach, the Gemara here is clear. If 'Deracheha Darchei No'am' is the reason why she does not fall to Yibum when the Isur Ervah to Shimon is removed, then one might have thought that such logic applies only when she was exempt from Yibum entirely (such as when there was only one surviving brother to whom she was forbidden with an Isur Ervah) and she was permitted to marry others. However, in a case in which she was not exempt from Yibum because there was another brother to whom she was not an Ervah, there is no unpleasantness involved if a second brother is required to perform Yibum, even if he was forbidden to her when she first fell to Yibum. This does not involve a lack of 'Darchei No'am' because, anyway, she was not permitted to remarry until she did Yibum or Chalitzah with the other brother.
</p><p>
Rav teaches that even in such a case, requiring her to do Yibum with the brother to whom she was originally forbidden is considered a lack of 'Darchei No'am.' It indeed is unpleasant for a woman to be required to do Yibum with a brother with whom she thought all ties were severed. (The prohibition in such a case because of 'Darchei No'am' does not mean that she is <i>not</i> prohibited with an Isur of 'Eshes Ach' to that brother. Rather, it means that it is logical that the Torah would not require her to fall to Yibum in such a case, and thus the Isur of 'Eshes Ach' remains and the Zikah does not take effect.)
</p><p>
(According to Tosfos' explanation, there are two different reasons for why a Yevamah remains forbidden forever after the <i>first</i> Nefilah and why she remains forbidden forever after the <i>second</i> Nefilah. Her prohibition during the first Nefilah is due to the logic of 'Darchei No'am' -- she cannot be required to do Yibum with a man with whom she had no obligation of Yibum. This logic, however, does not prohibit her to that Yavam when she falls to him from a second Nefilah, since there is an entirely new <i>cause</i> for her to fall to him. Rather, during the second Nefilah she is forbidden to him because she is his 'Eshes Ach she'Lo b'Makom Mitzvah' from the first Nefilah, and thus she can never become permitted to the Yavam. This approach is problematic, however, because the Gemara later (32a) seems to associate the two Isurim. The Gemara there says that once the Mishnah teaches that a Yevamah who was once forbidden remains forbidden after the second Nefilah, it is obvious that if she was once forbidden she should remain forbidden during the first Nefilah.) (M. Kornfeld)
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Rav Ashi's inference from our Mishnah disproves 
          Rav Nachman!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1:</font></b> Even if Levi died before the divorce, Esther 
          is permitted;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'This is the case' excludes when the Yibum precedes 
               the divorce (but not when death precedes the 
               divorce).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> This is fine if Rav Nachman holds like R. 
          Yirmeyah, who said 'These Mishnayos (our Mishnah and 2a) 
          must have different authors';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana of 2a holds that death causes the fall to 
               Yibum (a Yavam is considered Tzaras Ervah only if 
               she was Tzaras Ervah when her husband died).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Our Tana holds that the initial marriage causes the 
               fall (if she was Tzaras Ervah at any time during her 
               marriage, she is considered Tzaras Ervah when she 
               falls). If the Yibum preceded the divorce, since 
               Leah was once Tzaras Ervah, even divorce of the 
               sister will not allow Yibum later.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rava said that the same Tana taught both, and the 
               Mishnah on 2a is the bigger Chidush (death causes 
               the fall to Yibum, so even if the divorce was after 
               Yibum the Tzarah is permitted).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Summation of question:</font></b> If Rav Nachman holds like 
               Rava, what does 'This is the case' exclude?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Nachman must hold like R. Yirmeyah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Granted, if Rava holds like Rav Ashi, 'This is 
          the case' excludes if he never divorced the sister (even 
          if he never did Yibum, Leah is forbidden, for she is 
          Tzaras Ervah through Zikah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if Rava holds like Rav Nachman, what case is 
               excluded?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> Rava must hold like Rav Ashi.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN IN DOUBT, WE DO 'CHALITZAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If an Ervah was Safek Mekudeshes (to a 
          brother) or Safek divorced, the Tzaros do Chalitzah, not 
          Yibum;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Safek Kidushin is when he threw Kidushin money to her, 
          and we are unsure if it landed closer to him or to her;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Safek divorce is a Get in the husband's handwriting 
          without witnesses, or it has witnesses but no date, or it 
          has a date but only one witness.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Why doesn't the Mishnah list among 
          Safek Gerushin when he threw a Get to her and we are 
          unsure to whom it is closer?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (Rabah):</font></b> The Tzarah's Chazakah was to be exempt 
          from Yibum or Chalitzah (when her husband will die). When 
          in Safek, we follow her Chazakah. (More answers will be 
          given on Daf 31b.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection (Abaye):</font></b> If so, we should say the same about 
          Safek Kidushin, (e.g. Leah is Safek Mekudeshes to 
          Reuven)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Chazakah of her Tzarah (Reuven's other wife) was 
               to be permitted to do Yibum. We should not forbid 
               her due to Safek!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> There, we are stringent.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> This stringency will lead to a leniency!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If later Reuven was Mekadesh Leah's sister, or 
               another man was Mekadesh Leah (and Reuven died), 
               since Leah's Tzarah was forbidden to do Yibum, 
               people will think that Leah was Vadai Mekudeshes, so 
               the second Kidushin was invalid (and Leah's sister 
               may marry Reuven's relatives/Leah is permitted)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Since we require the Tzarah to do Chalitzah, 
          people realize that this is only a stringency, so they 
          will not err.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>'SAFEK' 'KIDUSHIN' AND DIVORCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> We should teach the case of Gerushin (when we 
          don't know to whom the Get was closer) and require 
          Chalitzah, so people will know that this is only a 
          stringency!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> If we would require Chalitzah, people would come 
          to do Yibum!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Also regarding Safek Kidushin, we should be 
          concerned lest requiring Chalitzah will lead people to do 
          Yibum!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> There, it is no problem if they do Yibum. The 
          Chazakah permits Yibum!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Abaye - Mishnah):</font></b> If a house fell on a man and 
          his brother's daughter (one of his wives), and we do not 
          know who died first, the Tzarah does Chalitzah but not 
          Yibum.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We should follow the Chazakah that the Tzarah is 
               exempt from Yibum and Chalitzah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it is a mere stringency to 
               require Chalitzah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> This stringency will lead to a leniency! 
               If we require Chalitzah, people will come to do 
               Yibum!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1:</font></b> Divorce is common, so Chachamim decreed not to 
          do Chalitzah, lest people do Yibum. A house falling down 
          is uncommon, so no decree was made.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2:</font></b> Regarding divorce the Ervah is alive, so 
          people will think that Chachamim verified that the 
          divorce was valid, and they will do Yibum with the 
          Tzarah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When the house fell, no one will think that 
               Chachamim clarified who died first!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Mishnah):</font></b> If his wife was standing in a Reshus 
          ha'Rabim, and he threw a Get to her:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is closer to her, she is divorced. If it is 
               closer to him, she is not divorced. If it is in the 
               middle, she is divorced and not divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does it mean 'divorced and not 
               divorced'?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> if he is a Kohen, she is forbidden to him. 
               If she is Ervah, her Tzarah must do Chalitzah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Summation of question:</font></b> We are not concerned lest 
               requiring Chalitzah lead people to do Yibum!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Rabah and Rav Yosef established the Mishnah to be 
          when one pair of witnesses says that the Get was closer 
          to her, and another pair says that it was closer to him. 
          This is a Safek mid'Oraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If our Mishnah discussed a similar case, but when 
               there is only one pair of witnesses (who argue about 
               to whom the Get was closer), the Safek would be 
               mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Objection #1:</font></b> Why would we say that the Mishnah discusses 
          when there is only one pair?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> Just like there is only one pair regarding 
          Kidushin, also regarding divorce.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> What is the source that there is only one pair 
          regarding Kidushin? Perhaps there are two!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> If there were two pairs, there would be no reason 
          not to do Yibum!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection:</font></b> Two witnesses who say that the money was 
          closer to her is a great reason not to do Yibum!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection #2:</font></b> Also when there are two pairs of witnesses, 
          the Safek is mid'Rabanan!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Mid'Oraisa, the pairs of witnesses cancel each 
               other, and we follow her Chazakah (she is not 
               Mekadesh, so the Tzarah may do Yibum).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We say so about the property of Bar Shatya (a man 
               who alternated between sanity and insanity)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Bar Shatya sold property. Two witnesses 
                    testified that he was sane at the time, and two 
                    testified that he was insane at the time.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rav Ashi):</font></b> The witnesses cancel each other, 
                    and we follow the Chazakah that the property 
                    belongs to Bar Shatya.
<br>
<br>

sjt:
<font><b>1) WRITING THE DATE IN A GET</b></font><b>
<br>QUESTION:</b> The Gemara explains the reason for why the Chachamim enacted that the date be written in a Get but did not enact that the date be written in a marriage contract ('Shtar Kidushin'). One reason is to prevent deception in a case of a man married to his niece who committed adultery. In such a case, although the adulteress is Chayav Misah for her sin, her husband (who is her uncle) will attempt to spare her from punishment by giving her a Get with no date, with which she can claim that she was divorced before her sin. The Chachamim's enactment that every Get include the date of writing ensures that no adulteress will evade punishment.
</p><p>
<b>RASHI</b> (DH l'Hatzalah) explains that even if the adulterous woman would erase the date from the Get, she would not avoid punishment. On the contrary, she would incriminate herself. When Beis Din sees that the Get is missing its date, Beis Din assumes that the woman was divorced at the <i>latest</i> possible time, after she sinned (because she has a Chazakah -- 'Chezkas Eshes Ish' -- that she was married until now). In contrast, there is no benefit in writing the date in a Shtar Kidushin, because a woman who committed adultery will simply erase the date and claim that she became married <i>after</i> her sin. In such a case, the Chazakah that she was not married until now will <i>support</i> her claim, as Beis Din will have to assume that she was not married at the time of her sin.
</p><p>
<b>RASHI</b> (DH l'Hatzalah) asks that if Beis Din assumes -- based on the 'Chezkas Eshes Ish' -- that the woman who was divorced received her Get later (after her sin), why was it necessary to institute that the date be written in a Get? Even with no requirement to write the date in a Get, Beis Din would assume that a dateless Get was given at the latest possible moment (after she sinned). Without a date in the Get, Beis Din may punish the adulteress based on the Chazakah that she was married when she sinned. Why was it necessary for the Chachamim to enact that the date be written in a Get in order to incriminate an adulteress?
</p><p>
Rashi answers that Beis Din may not execute a wrongdoer based on a Chazakah. Before the Chachamim enacted that the date be written in a Get, Beis Din could not execute an adulteress based on the Chazakah that she was married when she sinned; there still would be a doubt whether she sinned before the divorce or after, and thus the woman would be spared. Once the Chachamim enacted that the date be written in a Get, in the event that the date was erased Beis Din may rely on the Chazakah and execute her.
</p><p>
Rashi's explanation is difficult to understand. If a Chazakah provides evidence that the woman was married at the time she sinned, then even before the enactment of writing the date in a Get Beis Din should execute her based on the Chazakah (which resolves the doubt). If, on the other hand, the Chazakah does not provide strong enough evidence to execute her, then how can Beis Din rely on the Chazakah after the enactment?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU AVRAHAM MIN HA'HAR</b> explains Rashi's words in more detail. The erasure mark of a date in a Get (after the Chachamim enacted that the date be written in a Get) creates a situation of 'Raglayim l'Davar,' or circumstantial evidence, that the woman indeed sinned before she received the Get, and that the date was erased (or omitted) in order to protect the woman. This circumstantial evidence is not sufficient evidence by itself to have a person executed, and the 'Chezkas Eshes Ish' is also not sufficient evidence by itself to have a person executed. Beis Din, however, <i>may</i> execute the woman based on a combination of the two factors -- the 'Chezkas Eshes Ish' with the circumstantial evidence of the erased date in the Get. In contrast, when the date is missing from a Shtar Kidushin, although there is circumstantial evidence of foul play, there is no Chazakah that the woman was married at the time of her sin, and Beis Din may not execute her based on circumstantial evidence alone.
</p><p>
This explanation does not seem consistent with Rashi's words. Rashi makes no mention of 'Raglayim l'Davar.' Rashi clearly implies that it is the Chazakah alone that gives Beis Din the right to execute the woman.
</p><p>
(b) Perhaps another approach may be suggested as follows. Before the enactment to write the date in a Get, the 'Chezkas Eshes Ish' was not sufficient evidence to execute the woman. The valid Get in her hands offsets the power of the 'Chezkas Eshes Ish' because it shows that her status of 'Eshes Ish' has changed. She cannot be assumed to have had a status of an 'Eshes Ish' at a given moment if the item which removes that status is present (see <b>RASHI</b> to Gitin 17b, DH Gazyeh). However, after the Chachamim enacted that the date be written in a Get, when a Get missing its date is presented to Beis Din, there is a significant deficiency ('Rei'usa') in the Get itself with regard to the time at which it took effect (since the date has been erased). Despite the fact that the Get is valid mid'Oraisa, it is not a powerful enough piece of evidence to offset the 'Chezkas Eshes Ish.' Therefore, the Chazakah remains and she is executed on the basis of the Chazakah.
</p><p>
This approach may answer a fundamental question which the Rishonim ask on the words of Rashi. <b>TOSFOS</b> (DH l'Hatzalah) and other Rishonim point out that the Gemara in Gitin (17b) clearly states that even if the man cuts the date out of the Get before he hands it to the woman, the Get serves to vindicate her in court from charges of adultery. Although the date on which the Get was given is unknown, <i>and</i> there are signs of foul play (a piece of the Get is cut out), Beis Din still acquits the woman because of the Get. (Similarly, the Gemara there says that if the husband finds a scribe and witnesses who are willing to write a Get without a date, such a Get serves to acquit the woman if presented in court.) Why does such a Get acquit the suspected adulteress even <i>after</i> the enactment to write the date in a Get?
</p><p>
Perhaps Rashi understands that a Get is considered to have a 'Rei'usa' only when it is missing a part which originally <i>was in the Get</i>. (That is, the date in the Get was altered <i>after</i> the Get was given to the woman to effect a divorce, at which moment it formally became a valid Get.) Since the Get was altered after it was given to the woman, the Get has a 'Rei'usa' -- and the 'Rei'usa' is in the very part of the Get which affects the question at hand, the time at which the Get was given. This is why the woman may be killed if she erases the date in the Get. If, however, the husband erases (or omits) the date <i>before</i> he gives the Get to his wife, she simply asks the witnesses to make a note that the Get was lacking a date at the time of its delivery, and there no longer is a 'Rei'usa' in the Get at all. In this way, the Get serves to vindicate her when it lacks a date at the time of its delivery. (M. Kornfeld)
</p><p>
(c) All of the other Rishonim disagree with Rashi. They explain that the 'Chezkas Eshes Ish' plays no role in Beis Din's prerogative to execute the adulteress, and, therefore, before the enactment that the date be written in a Get, Beis Din was unable to execute her. When the Gemara says that a woman does not tamper with the Get but she does tamper with her Shtar Kidushin, the difference is not that the 'Chezkas Eshes Ish' incriminates her. Rather, the difference is that she is <i>afraid</i> that the Chachamim will invalidate a Get when they see that someone tampered with it. (In truth, they will not invalidate such a Get, but she thinks that they will.) In the case of a Shtar Kidushin, however, she does not care if the Chachamim invalidate the Kidushin, because even if they do she will not be executed (since, when they invalidate the Kidushin, her sin was committed when she was <i>not</i> an 'Eshes Ish').
</p><p>
According to these Rishonim, why does the 'Chezkas Eshes Ish' indeed play no role in the verdict? Why does the Chazakah not determine that she was an 'Eshes Ish' at the time she sinned and that she is Chayav Misah?
</p><p>
1. The <b>RASHBA</b> and <b>RITVA</b> write simply that Beis Din may not execute a person in a situation of doubt. These Rishonim apparently maintain that a 'Chazakah d'Me'ikara' (a 'status-quo' Chazakah which is used to resolve a doubt by giving the person or object the status it had until the doubt arose) is not sufficient evidence to serve as basis for execution. (See a comprehensive discussion of this issue in <b>SHEVILI D'CHAZAKAH</b> 19:1, by Rav Daniel Rabin, Jerusalem.)
</p><p>
2. <b>TOSFOS</b> in Gitin (17a, DH Mishum) gives a different reason for why the Chazakah is not taken into account in the verdict in this case. He says that although capital punishment could be administered based on the evidence of a Chazakah, in this case there are two factors which work against the Chazakah ('Tarti l'Rei'usa'; see Nidah 2b, <b>PNEI YEHOSHUA</b> and <b>HAGAHOS RAV SHLOMO EIGER</b> to Gitin 17a). The first factor is that she obviously is not an 'Eshes Ish' at present; she is holding a Get. The second factor is a different Chazakah which counters her 'Chezkas Eshes Ish': she has a 'Chazakah d'Me'ikara' of 'Chezkas Kesherah' that until the time she sinned she was a good Jew who did not sin. This 'Chazakah d'Me'ikara' tells Beis Din to assume that she was a good Jew until the latest possible moment (i.e. after the Get was given).
</p><p>
(The other Rishonim apparently do not consider the 'Chezkas Kesherah,' the Chazakah that she was not a sinner, a valid Chazakah, because it is not a Chazakah which says something about her <i>status</i> per se, but something about her deeds and her free choice, and that itself is the question for which she is being judged.)
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer #2 (to question 4:d, Daf 30b - Abaye):</font></b> Each clause 
          teaches about the other. The case of Kidushin also 
          applies to divorce. The cases of divorce also apply to 
          Kidushin.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Objection (Rava):</font></b> If so, what does 'This is (the case)' 
          come to exclude?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer #3 (Rava):</font></b> The case of Kidushin also applies to 
          divorce. There is a case of divorce that does not apply 
          to Kidushin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'This is' regarding divorce doesn't exclude 
               anything. It was taught for parallel structure with 
               'this is' regarding Kidushin.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A 'SHTAR' 'KIDUSHIN' DOES NOT NEED A DATE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What does 'this is' regarding Kidushin exclude?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> It excludes a Shtar Kidushin without a date (it 
          is valid).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't Chachamim enact that a Shtar 
          Kidushin needs a date?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand according to the opinion that the date 
               on a Get is to clarify from when the husband lost 
               rights to receive Peiros (the yield of her 
               property). He does not get Peiros until Nisu'in, so 
               we do not need to know the date of Kidushin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But some say that the date is to prevent a husband 
               from saving his wife from execution if she had 
               adultery (by giving her a Get without a date), e.g. 
               if he married his sister's daughter, on whom he has 
               compassion (normally, he is happy that she be 
               killed). If so, the same concern exists by Kidushin!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1:</font></b> Because some people are Mekadesh with money, 
          and some with Bi'ah (and we cannot enact a date for 
          these), we did not enact for a document, either.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rav Acha):</font></b> A date was enacted for a deed of 
          sale of a slave, even though some people buy with money, 
          and some with a deed!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Most people buy slaves with a deed; most people 
          Mekadesh women with money.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2 (to Question (c)):</font></b> We didn't enact a date on a 
          Shtar Kidushin, since it would not (always) enable us to 
          know when she is Chayav Misah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we would enact that she keeps the document, she 
               would erase the date (we cannot kill her unless we 
               are sure)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we would enact that he keeps the document, if he 
               has compassion on her, e.g. when she is his sister's 
               daughter, he will (erase the date to) cover up for 
               her!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> We should enact to leave it by the 
               witnesses.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> If they remember the date, they do not 
               need the document. If they do not remember the date, 
               perhaps they will testify based on what they see 
               written, and the Torah said that testimony must be 
               'from their mouths', not from what they wrote!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> If so, the same applies to divorce!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> There, the Get saves her (so she fears to erase 
          the date. Tosfos - indeed, if she erased the date we 
          could not kill her.) Here, the document condemns her!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A 'YEVAMAH' THAT FALLS FROM TWO BROTHERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven, Shimon and Levi (brothers) were 
          married to unrelated women. Reuven died. Shimon gave a 
          Ma'amar to the Yevamah, then he died. Both Yevamos do 
          Chalitzah, not Yibum;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'U'Mes Echad Mehem Yevamah Yavo Aleha' - this is 
               when she has Zikah from one brother, not from two.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Shimon says, Levi may do Yibum with whichever he 
          wants, and Chalitzah to the other.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> If the Isur of Zikah from two brothers 
          is mid'Oraisa, Chalitzah should not be required!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> The Isur is only mid'Rabanan, lest people say 
          that when two Yevamos fall from one brother, both may do 
          Yibum.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> We should say that one does Yibum and the other 
          does Chalitzah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> We decreed not to, lest people say that some 
          Yevamos from a brother do Yibum and others do Chalitzah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> What is wrong if they say this?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> If they would do Yibum and then Chalitzah, there 
          would be no problem. The concern is lest they do 
          Chalitzah and then Yibum;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'That will not build... ' - once Chalitzah is done, 
               it is forbidden to do Yibum.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>UNDOING A 'MA'AMAR'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  (The Mishnah said that if Reuven died, Shimon gave a 
          Ma'amar, then he died, both Yevamos do Chalitzah, not 
          Yibum.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Version #1 (Rava):</font></b> If a Yavam gave a Ma'amar to Leah and 
          then a Get to undo the Ma'amar, her Tzarah may do Yibum. 
          Leah is forbidden, lest she be confused with the 
          recipient of a Get to undo Zikah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Version #2 (Rava):</font></b> If he gave a Get to undo his Ma'amar 
          to Leah, even she may do Yibum. He undid his Ma'amar.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A 'YEVAMAH' WHO WAS ONCE FORBIDDEN IS ALWAYS FORBIDDEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Reuven and Shimon (brothers) were married, 
          respectively, to Rachel and Leah (sisters). Reuven died, 
          and then Shimon's wife died. Reuven's widow is forever 
          forbidden, since she was once forbidden.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> This is obvious!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Mishnah of three brothers (30a), when she was 
               able to do Yibum with a different Yavam, she was 
               forever forbidden to the Yavam she was initially 
               forbidden to.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, she cannot (initially) do Yibum at all, all 
               the more so, she is forever forbidden!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The Tana first taught our Mishnah, thinking that 
          in the other case, she would be permitted. Later, he 
          realized that even there, she is forbidden.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since it is a bigger Chidush, he put it before our 
               Mishnah. Our Mishnah was retained (even though it 
               does not add a Chidush).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAN TWO 'ISURIM' APPLY SIMULTANEOUSLY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa #1 - R. Yosi):</font></b> If Shimon had Bi'ah with Rachel 
          (before Leah died), he is liable for the Isurim of Eshes 
          Ach and Achos Ishto;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon says, he is liable only for Eshes Ach.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Contradiction (Beraisa #2 - R. Shimon):</font></b> He is liable only 
          for Achos Ishto!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> (He always holds that only the first Isur takes 
          effect.) In Beraisa #2 Shimon married (Leah) before 
          Reuven married (Rachel, so the Isur of Eshes Ach took 
          effect first). In Beraisa #1, Reuven married first.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> According to R. Shimon, when Reuven married 
          first, since the Isur of Achos Ishto does not take 
          effect, Yibum should be permitted!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> The Isur is pending. If the Isur of 
          Eshes Ach would go away, the Isur of Achos Ishto would 
          take effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, Yibum is forbidden, and the Isur of Eshes 
               Ach remains.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Does R. Yosi really hold that Isur Chal Al Isur 
          (a second Isur takes effect on something already 
          forbidden)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a man did an Aveirah punishable by two 
               different deaths, he receives the more severe one;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, he is sentenced to the first that 
               applied.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa):</font></b> What is considered the first that 
               applies? If Chamoso (his mother-in-law) got married 
               (and he had Bi'ah with her), he is liable for 
               Chamoso. If she was married and then became his 
               mother-in-law, he is liable for Eshes Ish.
<br>
<br>

sjt:
<font><b>1) THE EFFECT OF 'EIN ISUR CHAL AL ISUR' ON THE STATUS OF A TZARAH</b></font><b>
<br>QUESTION:</b> Rebbi Shimon maintains 'Ein Isur Chal Al Isur' -- once an object is prohibited with one Isur, it cannot become prohibited again with another Isur. Accordingly, when two brothers were married to two sisters and one brother died, if the surviving brother does Yibum with his brother's wife (to whom he is prohibited because of 'Achos Ishto'), he is liable for transgressing only <i>one</i> Isur: If the first brother was married first the Isur of 'Eshes Ach' took effect, and when the second brother marries the sister of his brother's wife the Isur of 'Achos Ishto' cannot take effect. If, however, the second brother married first and his wife's sister became forbidden to him as 'Achos Ishto,' when his brother marries the second sister the Isur of 'Eshes Ach' cannot take effect.
</p><p>
Beis Shamai makes a similar statement earlier (13b), where he rules that one is liable only for his transgression of the Isur which took effect first. Beis Shamai concludes that the Tzarah of an Ervah is <i>permitted</i> to do Yibum: if the deceased brother had married the other wife <i>before</i> she became an Ervah to the second brother, the other wife is only an 'Eshes Ach' to the brother, in which case the Tzarah is not the Tzarah of an Ervah but rather the Tzarah of merely an 'Eshes Ach' (and thus she may do Yibum). If the deceased brother had married the other wife <i>after</i> she became forbidden as 'Achos Ishto' to the second brother, the Tzarah is <i>only</i> the Tzarah of an 'Achos Ishto,' and since an 'Achos Ishto' does not fall to Yibum at all (since only a woman who is an 'Eshes Ach' falls to Yibum) she does not preclude the Tzarah from doing Yibum.
</p><p>
Does this imply that Rebbi Shimon (and every other Tana who maintains 'Ein Isur Chal Al Isur') agrees with Beis Shamai that the Tzarah of an Ervah may perform Yibum? (<b>TOSFOS YESHANIM</b> 13b)
</p><p>
<b>ANSWER:</b> Although Beis Shamai associates the two issues and says that the allowance for a Tzaras Ervah to do Yibum depends on 'Ein Isur Chal Al Isur,' the other Tana'im who maintain 'Ein Isur Chal Al Isur' assert that the two issues are not related. A Tzaras Ervah is prohibited from doing Yibum even if 'Ein Isur Chal Al Isur.'
</p><p>
The reason for this is that the Gemara says that although only one Isur actually takes effect, the other Isur is 'Mitla Tali v'Kai' -- it is suspended and waiting for an opportunity to take effect. As soon as the first Isur is removed, the second Isur takes effect. Rebbi Shimon (and those who rule, like Beis Hillel, that a Tzarah of an Ervah is prohibited from doing Yibum) maintain that the fact that the Isur is suspended and waiting to take effect is enough to give the woman the status of both an 'Eshes Ach' and an 'Achos Ishto' as far as Yibum is concerned. In a case in which the Isur of 'Eshes Ach' took effect first, the Yevamah is considered forbidden as an Ervah because of the Isur of 'Achos Ishto' which is suspended and waiting to take effect. In a case in which the Isur of 'Achos Ishto' took effect first, she still falls to Yibum because she is considered an 'Eshes Ach' due to the Isur of 'Eshes Ach' that is suspended and waiting to take effect. That potential Isur is enough to make her fall to Yibum.
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1 (R. Avahu):</font></b> R. Yosi agrees that that Isur Chal 
          Al Isur if the latter Isur is Mosif (it forbids the 
          forbidden object to more people).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> This explains the case when Shimon married 
          before Reuven did. When Rachel married Reuven, she became 
          forbidden to all his brothers, so the Isur of Eshes Ach 
          also takes effect on Shimon (her sister's husband).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But when Reuven married first, why is Achos Ishto an 
               Isur Mosif (when Shimon marries Leah? Rachel does 
               not become forbidden to more people!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is Mosif because Shimon became 
               forbidden to all the sisters.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> This is an Isur Kolel (it forbids more 
               objects on the person)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> Really, he is liable only for one. R. 
          Yosi means that he is considered liable for both;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that he is buried among the utterly 
               wicked (like one who did two Aveiros).
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  R. Chiya and Bar Kapara argued as R. Yosi and R. Shimon 
          do.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (R. Chiya):</font></b> If a Zar (non-Kohen) served in the Mikdash on 
          Shabbos, he is liable for two Aveiros;
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Bar Kapara):</font></b> He is liable for one.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  R. Chiya:</font></b> I swear that Rebbi said that he is liable 
          twice!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Bar Kapara:</font></b> I swear that Rebbi said that he is liable 
          once!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Chiya:</font></b> Shabbos was forbidden to all. It was 
               permitted (for Avodah) only to Kohanim. He is liable 
               for transgressing Shabbos, and for Avodas Zar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Bar Kapara:</font></b> Shabbos was forbidden to all. It was 
               permitted (Stam, i.e. to all). He is liable only for 
               Avodas Zar.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (R. Chiya):</font></b> If a Kohen Ba'al Mum served in the Mikdash 
          b'Tum'ah, he is liable for two Aveiros; (p)	(Bar Kapara): 
          He is liable for one.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  Each of them swore that Rebbi said like him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Chiya:</font></b> Avodah b'Tum'ah was forbidden to all. It 
               was permitted only to unblemished Kohanim (for 
               Korbanos Tzibur). He is liable for Avodas Ba'al Mum, 
               and for serving b'Tum'ah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Bar Kapara:</font></b> Avodah b'Tum'ah was forbidden to all. It 
               was permitted in the Mikdash (Stam). He is liable 
               only for Avodas Ba'al Mum.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  (R. Chiya):</font></b> If a Zar ate Melikah (Chatas ha'Of; it is 
          killed by pinching its neck), he is liable twice;
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  (Bar Kapara):</font></b> He is liable once.
<br> <b>    <b><font color='darkgreen'>(s)</font></b></b>  Each of them swore that Rebbi said like him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Chiya:</font></b> Eating Neveilah (something that died 
               without Shechitah) was forbidden to all. It was 
               permitted in the Mikdash only to Kohanim. He is 
               liable for Achilas Kodshei Kodoshim by a Zar, and 
               for eating Neveilah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Bar Kapara:</font></b> Eating Neveilah was forbidden to all. It 
               was permitted in the Mikdash. He is liable only for 
               Achilas Kodshei Kodoshim by a Zar.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS 'ISUR' 'CHAL' 'AL' 'ISUR'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1:</font></b> They argue about Isur Kolel, according to R. 
          Yosi;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Chiya holds that R. Yosi is Mechayev twice for an 
               Isur Kolel; Bar Kapara holds that he is Mechayev 
               only once.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection:</font></b> What Isur Kolel is there here?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand the case of a Zar who served on 
               Shabbos. He was permitted to do Melachah (before 
               Shabbos) and forbidden to serve. When Shabbos came, 
               he also became forbidden to do Melachah. The Isur 
               applies to Avodah as well.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We understand the case of a Ba'al Mum who served 
               b'Tum'ah. He was permitted to eat Kodshim and 
               forbidden to serve. When he became Tamei, he became 
               forbidden also to eat Kodshim; the Isur applies to 
               Avodah as well.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> But when a Zar ate Melikah, the Isurim can come 
               together, but it cannot be a case of Isur Kolel!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2:</font></b> Rather, they argue about Isur Bas Achas 
          (Isurim which come simultaneously), according to R. Yosi;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Chiya holds that R. Yosi is Mechayev twice; Bar 
               Kapara holds that he is Mechayev once.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> How can the first two cases be Isur Bas Achas?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Regarding a Zar who served on Shabbos, the case 
          is that he brought two hairs (after 13 years, and became 
          an adult) on Shabbos. (All Isurim, including) Avodas Zar 
          and Melachah on Shabbos take effect on him when he 
          becomes an adult.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Likewise, if a Kohen Ba'al Mum was Tamei when he 
               became an adult, the Isurim of Avodas Ba'al Mum and 
               Avodah b'Tum'ah both come the moment he becomes an 
               adult.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Alternatively, his finger was cut off with a Tamei 
               knife, making him Tamei and blemished at the same 
               time.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Objection:</font></b> Granted, R. Chiya learned from Rebbi how R. 
          Yosi holds, and he can say that Rebbi taught Bar Kapara 
          how R. Shimon holds (and Bar Kapara later got confused).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But how will Bar Kapara explain that R. Chiya heard 
               Rebbi says that he is liable twice? (Bar Kapara says 
               that even R. Yosi is Mechayev only once.) Would he 
               say that R. Chiya is lying?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #3:</font></b> Rather, they argue according to R. Shimon 
          about Isur Bas Achas.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Granted, R. Chiya had to swear to show that R. 
          Shimon holds unlike he usually does (he says Isur Chal Al 
          Isur only regarding Isur Bas Achas).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But why did Bar Kapara have to swear?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Granted, Bar Kapara will say that Rebbi taught 
          R. Chiya according to R. Yosi (and R. Chiya later got 
          confused).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But how will R. Chiya explain that Bar Kapara heard 
               Rebbi Mechayev once (since R. Chiya says that even 
               R. Shimon is Mechayev twice)? Would he say that Bar 
               Kapara is lying?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> R. Chiya will say that Rebbi taught only two 
          cases of Isur Kolel, in which one is liable only once, 
          according to R. Shimon.
<br>
<br>

sjt:
<font><b>1) A ZAR WHO PERFORMS 'SHECHITAH' OF A KORBAN ON SHABBOS</b></font><b>
<br>QUESTION:</b> The Gemara (32b) discusses three cases which are the subject of a dispute between Rebbi Chiya and Bar Kapara. The first case is that of a non-Kohen (Zar) who performs an Avodah in the Beis ha'Mikdash on Shabbos ('Zar she'Shimesh b'Shabbos'). Rebbi Chiya maintains that he is Chayav for two transgressions -- for desecrating Shabbos, and for performing Avodah as a non-Kohen. Bar Kapara maintains that he is Chayav for only one transgression -- for performing Avodah as a non-Kohen.
</p><p>
The Gemara here explores the details of the case and the underlying point of dispute between Rebbi Chiya and Bar Kapara. Exactly what Avodah did the Zar perform? The Avodah cannot be the act of Shechitah of a Korban, because the Zar would not be Chayav for two transgressions for performing the Shechitah of a Korban on Shabbos; a Zar is <i>permitted</i> to perform the Shechitah of a Korban.
</p><p>
<b>RASHI</b> (33b, DH Shechitah b'Zar) comments that since a Zar may perform Shechitah, 'there is no Isur of Zarus (performing an Avodah as a non-Kohen).' Rashi implies that a Zar who slaughters a public Korban on Shabbos will be liable for only one transgression (Chilul Shabbos).
</p><p>
Why is the Zar liable for Chilul Shabbos when he slaughters a Korban on Shabbos? If a Zar is permitted to perform the Shechitah of a Korban, his act should not constitute Chilul Shabbos when he performs the Shechitah of a public Korban on Shabbos! (<b>SHA'AR HA'MELECH</b>, Hilchos Bi'as Mikdash 6:10)
</p><p>
Moreover, the Mishnah in Pesachim (64a) states, 'The same way it (the Korban Pesach) is offered during the week, it is offered on Shabbos.' The Mishnah clearly says that the owner of the Korban Pesach, a Zar, may slaughter his Korban during the week. Accordingly, a Zar should be permitted to slaughter his Korban Pesach on Shabbos as well. (<b>RASHASH</b>)
</p><p>
<b>ANSWER:</b> Although a Zar's Shechitah is certainly valid, the Torah requires that l'Chatchilah a Kohen perform the Shechitah of any public Korban (such as the Korban Tamid), as the <b>RITVA</b> (Yoma 25a, DH u'Shtei Defanos) and <b>ME'IRI</b> (Yoma 25a, 31b) write. Since the Korban is offered on behalf of the Tzibur, it is appropriate that the Kohen -- who is the Tzibur's appointed Shali'ach -- perform the Shechitah of the Korban on their behalf. Since the Zar may not perform the Shechitah l'Chatchilah, if he does it on Shabbos he transgresses the Isur of slaughtering an animal on Shabbos. The Torah permits Shechitah on Shabbos only when it is done in a manner that is fully sanctioned l'Chatchilah. (As Rebbi Chiya says, 'The Torah permits Avodah on Shabbos only for [those who are told to do the Avodah -- ] the Kohanim, not for Zarim.')
</p><p>
The Shechitah of the Korban Pesach is different. The Korban Pesach is privately owned, and for any privately-owned Korban there is a Mitzvah l'Chatchilah for the owner himself to slaughter the Korban (Rashi to Pesachim 7b, DH Pesach; see, however, Rashi to Pesachim 64a, DH Shachat Yisrael, and Insights to Pesachim 64:3). Therefore, a Zar is permitted to slaughter the Korban Pesach on Shabbos.
</p><p>
This answer is based on the premise that in any situation in which the Torah suspends a prohibition and permits a certain act to be done, it does <i>not</i> permit that act to be done when it is prohibited l'Chatchilah for some other reason. The <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b> cites proof for this principle from the Gemara's explanation (33a) of the second case in which Rebbi Chiya and Bar Kapara disagree. When a Ba'al Mum (a Kohen with a blemish) performs an Avodah while he is Tamei, is he liable for two transgressions (performing an Avodah as a Ba'al Mum, and performing an Avodah while Tamei), or for only one transgression (performing an Avodah as a Ba'al Mum)? The Gemara explains that the case in question is when the two Isurim took effect at the same moment. Such a case exists when a Kohen became a Ba'al Mum by cutting off his finger with a knife that was Tamei. He became a Ba'al Mum at the same moment that he became Tamei. The <b>RAMBAM</b> (Hilchos Bi'as ha'Mikdash 8:11) counts a missing finger as one of the blemishes which invalidate a Kohen from performing an Avodah <i>l'Chatchilah</i>, but b'Di'eved his Avodah is valid. Although, normally, 'Tum'ah Hutrah b'Tzibur' (the Kohen may perform the Avodah of a Korban Tzibur while he is Tamei, even l'Chatchilah), in this case the Kohen is liable for performing the Avodah while Tamei (according to Rebbi Chiya). Why should the Kohen be liable for performing the Avodah while Tamei, if 'Tum'ah Hutrah b'Tzibur'? It is evident that 'Tum'ah Hutrah b'Tzibur' does <i>not</i> apply when the Avodah is performed in a way in which, l'Chatchilah, it should not be performed -- such as by a Kohen who is missing a finger. (See also the Gemara earlier, 20b, with regard to Tefisas Yibum b'Di'eved with Chayavei Lavin.)
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Bar Kapara thought that the case of a Zar who ate 
               Melikah is similar, so he joined it to the two 
               teachings he heard from Rebbi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Later, (he thought that Rebbi taught him all three, 
               and) he realized that the Isurim of Melikah always 
               come together. He reasoned that the other two cases 
               are also Isur Bas Achas, and all are liable only 
               once.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question (Beraisa - R. Yosi):</font></b> If a Zar served on Shabbos, 
          and a Ba'al Mum Kohen served when Tamei, the former is 
          liable for Avodas Zar and Melachah on Shabbos; the latter 
          is liable for Avodas Ba'al Mum and Avodah b'Tum'ah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon says, the former is liable only for Avodas 
               Zar; the latter is liable only for Avodas Ba'al Mum.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Beraisa omitted the case of Melikah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Due to which Tana was this case omitted 
               (because it is inconsistent with his other 
               teachings)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It was due to R. Yosi.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> He is Mechayev twice for Isur Kolel, 
                    all the more so for Isur Bas Achas!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It was due to R. Shimon. He is Mechayev only 
               once for Isur Kolel, but agrees that one is liable 
               twice for Bas Achas.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Bar Kapara is refuted.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> What Avodah did the Zar do on Shabbos?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It was not Shechitah, for a Zar is Kosher for 
               Shechitah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It was not Kabalah and carrying the blood to the 
               Mizbe'ach, for this is not a Melachah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It was not Haktarah (burning on the Mizbe'ach), for 
               R. Yosi holds that burning (on Shabbos) is only a 
               Lav!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #1 (Rav Acha bar Yakov):</font></b> He slaughtered Par Kohen 
          Gadol (of Yom Kipur), according to the opinion that a Zar 
          may not do this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why do they discuss a Zar? Even a 
               Kohen Hedyot may not do this!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Indeed, Zar refers to anyone who is foreign 
               to (unqualified for) this.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> (Really, he was Maktir.) The 
          Beraisa did not say how many Chata'os must be brought, or 
          how many Lavin were transgressed, rather, how many Isurim 
          were transgressed!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If he transgressed twice, he is buried among 
               the utterly wicked.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>'ISURIM' THAT CAN TAKE EFFECT TOGETHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If two men were Mekadesh two women, and at the 
          time of Chupah they switched wives, they are liable for 
          Eshes Ish. If they are brothers, they are (also) liable 
          for Eshes Ach. If the women are sisters, they are liable 
          for Achos Ishto. If they were Nidos, they are liable for 
          Nidah;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  We separate each woman (from her husband) for three 
          months, lest she is pregnant (from the other man. Without 
          separation, we would not know who is the father). If the 
          women are minors, who cannot give birth, they return to 
          their husbands immediately;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If they are Kohanos, they are disqualified from eating 
          Terumah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara) Question #1:</font></b> 'They switched' connotes 
          intentionally. Do we discuss Resha'im?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question #2:</font></b> R. Chiya taught that they bring (all 
          together) 16 Chata'os. If they intentionally sinned, they 
          do not bring Korbanos!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rav Yehudah):</font></b> The Mishnah should read, 'They were 
          switched'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Support #1 (Seifa):</font></b> If they were minors unfitting to give 
          birth, they are returned immediately.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they intentionally switched, they are forbidden 
               to their husbands!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Rejection:</font></b> This is no support. A minor who commits 
          adultery is considered forced, so she is permitted to her 
          husband (unless he is a Kohen).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Support #2 (Reisha):</font></b> They separate for three months, in 
          case they are pregnant. (We discuss adults.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Inference:</font></b> If not for this concern (or after three months 
          when we know whether or not they are pregnant) they are 
          permitted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they intentionally switched, they would be 
               forbidden.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MANY 'CHATA'OS' FOR ONE ACTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Our Tana holds that Isur Chal Al Isur regarding 
          Isur Kolel, Isur Mosif and Isur Bas Achas. Like whom is 
          this?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rav Yehudah):</font></b> It is R. Meir.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One can bring four Chata'os and one Asham 
               for one Achilah, e.g. a Tamei who ate on Yom Kipur 
               Chelev (forbidden fats) that was Nosar (past the 
               allowed time) from a Korban;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir says, if it was Shabbos, and he took the 
               food in his mouth from a Reshus ha'Yachid to a 
               Reshus ha'Rabim, he is also liable for this!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chachamim:</font></b> That is not relevant to liability for 
               eating.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Like whom does R. Meir hold?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He is unlike R. Yehoshua, who exempts from 
                    Chatas one who mistakenly errs while engaging 
                    in a Mitzvah!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> He holds like R. Eliezer.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> He can hold even like R. Yehoshua:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehoshua exempts one who circumcised the 
                    wrong child on Shabbos, since he is frenzied to 
                    do the Mitzvah in time. In our case, he is not 
                    rushed.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> There is no time pressure regarding 
               Terumah, yet R. Yehoshua exempts!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If a Kohen was eating Terumah and 
                    learned that his mother was divorced or did 
                    Chalitzah (i.e. he is a Chalal; he lacks 
                    Kedushas Kehunah), R. Eliezer obligates him to 
                    pay principal and a fifth (the fine for a Zar 
                    who ate Terumah);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yehoshua exempts.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Rav Bivi bar Abaye):</font></b> The case is, he was 
               eating (Chametz) Terumah on Erev Pesach, when there 
               is time pressure.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2:</font></b> It suffices to say that our Tana holds that 
          Isur Chal Al Isur when they are Bas Achas, like R. 
          Shimon.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Granted, the Isurim of Eshes Ish, Eshes Ach and 
          Achos Ishto come simultaneously if the brothers made one 
          Shali'ach to Mekadesh, the sisters made one Shali'ach to 
          receive Kidushin, and the Kidushin moneys were given 
          together.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But how can the Isurim of Nidah come simultaneously 
               with the other Isurim?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Amram):</font></b> They were Nidah when the boys became 
          (adults, at) 13, so the boys' Isurim came simultaneously;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The girls were Nidah when they became 12, so their 
               Isurim came simultaneously.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN A GIRL GET PREGNANT FROM 'BI'AH' 'RISHONAH'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> We separate them (lest they are pregnant)...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> A woman cannot become pregnant from her first 
          Bi'ah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (Rav Nachman):</font></b> They had Bi'ah twice.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> R. Chiya taught that 16 Korbanos Chatas are 
          brought. If they had Bi'ah twice, there would be 32!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> You must agree that according to 
               R. Eliezer, who is Mechayev for each pleasurable 
               action during Bi'ah, they are liable more than 16!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that we count only the Chata'os 
               for the first act.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Likewise, we count only for the first Bi'ah!
<br>
<br>

sjt:
<font><b>1) FOUR PROHIBITIONS WHICH TAKE EFFECT SIMULTANEOUSLY</b></font><b>
<br>QUESTIONS:</b> The Mishnah (33b) discusses a case in which two brothers performed Kidushin with two sisters, and at the time of the Chupah (Nisu'in) they switched wives. Each man and woman is liable for four transgressions (and must bring four Korbenos Chatas): 'Eshes Ish,' 'Eshes Ach,' 'Achos Ishah,' and Nidah.
</p><p>
The Gemara asks why each person in this case is liable for four Korbenos Chatas for four different transgressions if the Halachah follows the opinion that 'Ein Isur Chal Al Isur' (once an object is prohibited with one Isur, it cannot become prohibited again with another Isur). The Gemara answers that in the case of the Mishnah, all of the Isurim took effect simultaneously. Such a case exists when a man and his brother perform Kidushin with two sisters simultaneously by way of a Shali'ach. In such a manner, the three Isurim of 'Eshes Ish,' 'Eshes Ach,' and 'Achos Ishah' take effect at the same time.
</p><p>
The Gemara says that the Isur of Nidah also takes effect at the same time as the other Isurim, but only in the following situation: the Isur Nidah becomes binding on the man when the woman whom he betrothed had a flow ('Shofa'as') of blood from before he was thirteen years old until after he became thirteen, and the Isur Nidah becomes binding on the woman when she had a flow from before she was twelve until after she became twelve. At the moment each one becomes obligated in Mitzvos (age thirteen for him, age twelve for her), all of the Isurim take effect simultaneously.
</p><p>
<b>RASHI</b> (DH u'Mitoch) explains that the Isurim take effect at the same time only when the man and the woman are exactly one year apart in age, and thus they become obligated in Mitzvos at exactly the same time. The man (or, more precisely, boy) gave the woman Kidushin before he was thirteen and before she was twelve, with the stipulation that the Kidushin would take effect at a later time (when they both become of age). In that way, the Kidushin takes effect at the same time as the Isur Nidah, and thus all four Isurim take effect simultaneously.
</p><p>
<b>TOSFOS</b> and the Rishonim ask a number of questions on Rashi's explanation.
</p><p>
(a) How can a minor perform Kidushin such that it takes effect when he becomes thirteen? A minor under thirteen is not capable of effecting Halachic changes in status such as Kidushin.
</p><p>
Moreover, how can a minor appoint a Shali'ach to betroth a wife for him? A minor is unable to appoint a Shali'ach. (<b>TOSFOS</b> DH Mitoch)
</p><p>
(b) Halachic adulthood, according to Torah law, does not depend on the age of the person (such as twelve for a woman and thirteen for a man). Rather, mid'Oraisa it depends on physical signs of maturity (two pubic hairs). Why does Rashi write that the Mishnah refers to when the man and the woman turn thirteen and twelve, respectively, at the same moment, at which time they become obligated in Mitzvos (and therefore can be liable to bring a Korban Chatas)? The time at which they become obligated in Mitzvos does not depend on their age, but on the development of physical signs of maturity! Accordingly, the only circumstance under which the Isurim can take effect on both of them simultaneously is when they both develop the signs of maturity at exactly the same moment, a highly unlikely, if not impossible, situation ('Iy Efshar l'Tzamtzem'). (<b>RAMBAN</b>)
</p><p>
(c) Why does Rashi write that in order for all of the Isurim to take effect simultaneously, the Kidushin must take effect when the woman becomes twelve years old? It is clear that the <i>man's</i> Kidushin must take effect when he turns thirteen so that all of the Isurim will take effect at the same moment. The boy's act of Kidushin cannot take effect before he is thirteen years old, and if he performs the act after he is thirteen the Kidushin does not take effect at the same time as the Isur Nidah (which takes effect at the moment he turns thirteen). Therefore, his Kidushin must take effect exactly when he turns thirteen. Why, though, must the woman's Kidushin take effect when she is exactly twelve years old? A girl under the age of twelve <i>is</i> able to become fully Mekudeshes with Kidushin, since her father can receive the Kidushin on her behalf. If the man who was Mekadesh her then has relations with her after she turns twelve, at that point she (and he) will be liable for four Korbenos Chatas. Even though she became married earlier, all four Isurim take effect later, at the moment she becomes obligated in Mitzvos. (This question on Rashi is not mentioned by the Rishonim and Acharonim.)
</p><p>
(d) Finally, why does the Gemara mention that the woman experienced continual flows of blood ('Shofa'as') from before she was twelve until after she was twelve? For a woman to be a Nidah at the time that she turns twelve, no continual flow of blood is necessary. Rather, from the moment she experiences bleeding at any point before she turns twelve, she remains a Nidah until she immerses in a Mikvah. The Gemara should say simply that she saw blood before she turned twelve (and before he turned thirteen) and she did not immerse in a Mikvah. (<b>TOSFOS</b>)
</p><p>
<b>TOSFOS</b> and the other Rishonim reject Rashi's explanation (and Girsa). Tosfos cites a different text of the Gemara which says that the man is liable for all four transgressions when the <i>woman</i> becomes <i>three</i> years old, and not when the <i>man</i> becomes <i>thirteen</i> as our text says. If the man had relations with the woman when she was under the age of three, he has transgressed no Isur because his act is not considered an act of intimate relations (Nidah 45a). At the moment she turns three, all of the Isurim immediately take effect and prohibit her to the man. This is how these Isurim take effect 'b'Vas Achas,' at one moment, for the man. (Tosfos agrees with Rashi that the <i>woman</i> is liable for all four Isurim when she becomes obligated in Mitzvos at the age of twelve.)
</p><p>
This Girsa avoids the first question the Rishonim ask on Rashi's explanation. According to Tosfos, the man was over the age of thirteen when he betrothed the girl, and therefore he certainly was able to appoint a Shali'ach and effect a Kidushin. Tosfos' approach also resolves the second question; according to Tosfos, the man and the woman do not have to become obligated in Mitzvos at the same moment in order to be liable for four transgressions, since the man could have been an adult already. When the Gemara says that the woman becomes liable for all of the Isurim 'at the age of twelve,' it means that she becomes obligated <i>when she shows signs of maturity</i> (the growth of two hairs, which usually occurs around the age of twelve). For the same reason, the third question poses no difficulty to the explanation of Tosfos. Tosfos clearly states that the woman may become Mekudeshes at any time, even before she becomes twelve. The question is only on the explanation of Rashi, who implies that the Kidushin takes effect only when she becomes twelve <i>at the same time</i> as the man becomes thirteen.
</p><p>
However, there are a number of other problems with the explanation of Tosfos as well (besides the obvious problem of suggesting a change in the Girsa of the Gemara). Tosfos does not answer the fourth question, why the Gemara must say that the woman had a continual flow, and not that she simply became a Nidah once and remained a Nidah. This question poses an even greater difficulty according to Tosfos, because according to his Girsa both statements ('he is liable when she had a flow from before three to after three' and 'she is liable when she had a flow from before twelve to after twelve') refer to the age of the <i>woman</i>. If both time periods refer to the woman, why does the Gemara separate them into two? The Gemara should combine them into one period and say that both the man and the woman are liable 'when she had a flow of blood from before she was three until after she was twelve.'
</p><p>
The Rishonim (<b>RITVA</b>, <b>RASHBA</b>) answer that the Gemara's intention is to emphasize that it makes no difference whether or not the girl was a Nidah at anytime between the ages of three and twelve. Even if she immersed in a Mikvah during that period, as long as she was a Nidah when she turned three and when she reached the age of twelve, the Isur takes effect. When the Gemara says that she had a 'continual flow' ('Shofa'as'), <b>TOSFOS</b> and the Rishonim write that it is 'Lav Davka.'
</p><p>
(The explanation of Tosfos is based on the assumption that the man is not prohibited to the woman before she turns three years old. This assumption, however, may be debatable. Although it is true that it is not possible for him to have relations with her until that age, that does not necessarily mean that the Isurim do not take effect on him at all until she reaches that age. Rather, perhaps the Isurim <i>do</i> take effect on him, but he cannot <i>transgress</i> them until she reaches the age of three.)
</p><p>
How does Rashi answer the questions on his explanation of the Gemara?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> and other Rishonim answer that the Gemara in Kidushin (63a) states that according to Rebbi Meir -- who maintains that one may make a Kinyan on an item that has not yet entered the world ('Davar she'Lo Ba l'Olam') -- a Nochri is able to perform Kidushin with a Jewish woman by stipulating that the Kidushin take effect 'after I convert.' Rashi may understand that the Gemara here follows Rebbi Meir's opinion that one may make a Kinyan on a 'Davar she'Lo Ba l'Olam.' Accordingly, a minor is able to be Mekadesh a woman by stipulating that when he becomes an adult, the Kidushin will take effect (in this case, the minor is the 'Davar she'Lo Ba l'Olam,' as he is not yet an adult). Similarly, the minor is able to appoint someone to be Mekadesh a woman for him by stipulating that when he reaches adulthood, the other person will become his Shali'ach.
</p><p>
(Tosfos does not accept this reasoning. Tosfos maintains that a minor lacks more than just the Halachic ability to make a Kinyan. While a Nochri has the mental capacity to make a Kinyan of Kidushin, the Torah teaches that his act of Kinyan is not Halachically binding. A Katan, in contrast, does not have the mental capacity to <i>decide</i> to make a Kinyan in the first place, even one that will take effect at a later time. This disagreement between Rashi and Tosfos may be based on a fundamental difference in understanding the Torah's exemption of a minor from Mitzvos. Tosfos may understand that a minor is exempt from Mitzvos because his mind is not fully developed until a certain age. The Chachamim had a tradition that when signs of maturity appear (the growth of two hairs), we may assume that his or her mind is sufficiently developed. Rashi, in contrast, may understand that regardless of whether or not the minor's mind is developed, the Torah decreed that he is not obligated in Mitzvos and cannot effect Kinyanim until he turns thirteen (or grows two hairs). In fact, the <b>ROSH</b> (Teshuvos, Klal 16) writes that the age of thirteen for Mitzvos is a Halachah l'Moshe mi'Sinai. That is, although the minor's mind might be developed even before that time, he still lacks the Halachic prerequisites for being obligated in Mitzvos and for making Kinyanim. Since his mind is developed, however, he is able to make a Kinyan (and appoint a Shali'ach) that will take effect later, and we may assume that he is able to make a conscious decision. (For this reason, the <b>CHASAM SOFER</b> (Teshuvos YD 184, 317) discusses the possibility that a minor who has a mature mental capacity may be obligated in Mitzvos even when he is less than thirteen years old. See also Insights to Nidah 45:2.)
</p><p>
The <b>RASHBA</b>, however, challenges this answer. The Gemara here attempts to establish the Mishnah according to Rebbi Shimon. Rebbi Shimon disagrees with Rebbi Meir and maintains that '<i>Ein</i> Adam Makneh Davar she'Lo Ba l'Olam.' As such, Rebbi Shimon should rule that a minor <i>cannot</i> make a Kinyan for later.
</p><p>
Perhaps Rashi maintains that, in this case, Rebbi Shimon agrees that a minor may effect a Kinyan. If the minor's mind is developed and he merely needs to wait until he reaches a certain age because of a Halachah l'Moshe mi'Sinai, he is not considered a 'Davar she'Lo Ba l'Olam' because no action or event is required to give him the capacity to effect a Kinyan; that ability will come automatically with the passage of time (he is only 'Mechusar Zeman'), and thus he may make a Kinyan now and stipulate that it take effect when he reaches the age of adulthood. (See <b>MISHNEH L'MELECH</b>, Hilchos Ishus 4:7.)
</p><p>
(b) Why does Rashi attribute the coming of adulthood to a person's age and not to physical signs of maturity?
</p><p>
1. The <b>RAMBAN</b> writes that perhaps Rashi explains the Sugya according to the opinion that 'Toch Zeman k'Lifnei Zeman' -- when two hairs appear before the boy reaches the age of thirteen, his status is that of a minor and not an adult (Nidah 46a). In such a case, at the moment the boy becomes thirteen those hairs make him an adult as long as they remain on him past the age of thirteen.
</p><p>
2. The <b>RASHBA</b> answers based on the Gemara in Kidushin. When the hairs grow, Beis Din considers the person to be an adult retroactively to the beginning of that day. Therefore, even if the man and the woman do not develop signs of maturity at the exact same moment, as long as their signs appear on the same day they are considered to have become adults at the beginning of that day, and thus they became adults at exactly the same moment.
</p><p>
3. The <b>MISHNEH L'MELECH</b> (Hilchos Ishus 2:18, 4:7) answers that according to <b>RABEINU TAM</b> (cited by the <b>TUR</b> EH 155), if two hairs grow on the <i>last day</i> of the twelfth year (for a boy, or the last day of the eleventh year for a girl), they are considered signs of maturity but the minor does not have the status of an adult until sunset. Accordingly, the signs of maturity of the boy and girl may have grown on the same day and not at the same time, and yet they become adults at the same moment (at sunset of that day).
</p><p>
He adds that this may explain why Rashi presents the case that the boy was Mekadesh the girl on the <i>day before</i> they reached adulthood. Had the Kidushin been performed any earlier, any hairs that they grew at that time would not have been signs of maturity and the Kinyan of Kidushin would have been a Kinyan with a 'Davar she'Lo Ba l'Olam.' In contrast, when they grow hairs on the last day, they are merely 'Mechusar Zeman' (as mentioned above), and their Kinyan is not considered to be a Kinyan with a 'Davar she'Lo Ba l'Olam.'
<br> 
<br>(c) The answer to the third question, that a woman does not need to be twelve years old in order for Kidushin to take effect (and for all of the Isurim to take effect at one moment, when she reaches the age of twelve), may be as follows. Rashi understands that the reason why all of the Isurim take effect at the same moment for the man when he reaches the age of thirteen is that until the age of thirteen he was not obligated to observe the Mitzvos. In contrast, for a woman the Isur of 'Eshes Ish' takes effect upon <i>her body</i> (that is, she becomes an 'object of Isur' to others). Since the Isur of 'Eshes Ish' affects her body and is not merely something she must do or avoid doing, the Isur takes effect upon her even before she becomes obligated in Mitzvos (at age twelve). The other Isurim ('Eshes Ach,' 'Achos Ishah') are different. They prohibit her to marry specific people; since those Isurim prohibit her to some but not to all others, they do not render her an 'object of Isur.' Similarly, the Isur of Nidah does not render a woman an 'object of Isur' since it is an Isur that can be removed with Tevilah in a Mikvah (see Tosfos 2a, DH v'Achos). Therefore, the other Isurim take effect upon her only when she becomes an adult, at the age of twelve.
</p><p>
This explains why Rashi does not write that the woman received Kidushin as a minor (through her father). Had she received Kidushin as a minor, the Isur of 'Eshes Ish' would have taken effect <i>before</i> she reached the age of twelve, while the other Isurim would have become relevant only afterwards, at the age of twelve. Since 'Ein Isur Chal Al Isur,' the later Isurim would not have taken effect at all.
</p><p>
Rashi derives this from the wording of the Gemara. When the Gemara discusses how the Isur Nidah takes effect at the same time as the other Isurim, it does not use the word 'Ela' ('rather'). This implies that it does not retract its earlier statement, that the two brothers performed Kidushin to the two sisters at the same moment. If, however, the Isur applies only when the boys and girls reach the age of adulthood, it should make no difference when they performed Kidushin. Even if one act of Kidushin preceded the other, all of the Isurim take effect when they reach adulthood (as the <b>MISHNEH L'MELECH</b> asks in Hilchos Ishus 4:7). It must be that the Isur of 'Eshes Ish' indeed takes effect before the girl reaches adulthood. (M. Kornfeld)
</p><p>
(d) This approach may answer the fourth question as well. It is true that a girl who experiences bleeding remains a Nidah until she immerses in a Mikvah. However, the Gemara here mentions that she had a continual flow ('Shofa'as') because it wants to emphasize that the Isur of Nidah -- in contrast to the other Isur which prohibits her to all men (other than her husband), the Isur of 'Eshes Ish' -- is not a <i>title</i> which she acquires but a <i>prohibition</i> which applies to her as long as she is a Nidah. Consequently, it is not necessary to find a way in which the Isur of Nidah takes effect at the moment she turns twelve. The Gemara uses the active description of 'Shofa'as' instead of the passive description of 'a woman who is a Nidah' in order to emphasize this point.
</p><p>


<font><b>2) CONCEPTION WITH 'BI'AH RISHONAH'</b></font><b>
<br>QUESTION:</b> The Mishnah (33b) discusses a case in which two brothers performed Kidushin with two sisters, and at the time of the Chupah (Nisu'in) they switched wives. Each man and woman is liable for four transgressions (see previous Insight). In addition, before each woman returns to her proper husband, she must separate for three months. This separation is done in order to avoid confusion about the father of the child in case she became pregnant.
</p><p>
The Gemara asks why there is a concern that these women may have become pregnant at the moment of the Chupah if it is known that 'a woman does not conceive from her first act of relations (Bi'ah Rishonah).'
</p><p>
What is the Gemara's question? Perhaps the Mishnah refers to a case in which the women were married previously, and this act is not their 'Bi'ah Rishonah'! (<b>TOSFOS HA'ROSH</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS HA'ROSH</b> answers that according to the Girsa of Tosfos (see previous Insight) the answer is obvious. Tosfos explains that the Mishnah refers to a case in which the women became married before they were three years old. Any act of relations performed prior to that age did not constitute relations and the girls are not considered Be'ulos (since their Besulim return until the age of three). Consequently, the act of relations with their husbands after they reach the age of three is considered 'Bi'ah Rishonah.' (See also <b>RASHASH</b>.)
</p><p>
(b) <b>RAV YAKOV EMDEN</b> and the <b>MAHARSHA</b> (in <b>MAHADURA BASRA</b>) explain that the Gemara asks merely why the Mishnah does not qualify its statement and limit the requirement to separate for three months to women who previously had relations. The Mishnah implies that all women in this situation must separate for three months before they return to their proper husbands, even women who never before had relations. The Gemara inquires why they must separate if there is no concern that a woman becomes pregnant from the 'Bi'ah Rishonah.'
</p><p>
This approach is slightly inconsistent with the words of the Gemara's answer. The Gemara answers that the Mishnah's requirement that the women separate for three months before they return to their proper husbands applies only when the first, erroneous husbands had relations when them twice. If the Mishnah's ruling is limited to such a case, why does the Gemara not answer simply that the Mishnah is limited to a case in which the women had relations previously? (<b>MAHADURA BASRA</b>; see <b>ARUCH LA'NER</b>, DH v'Ha, who defends this answer.)
</p><p>
(c) The <b>MAHARACH <b><b>OR</b></b> ZARU'A</b> (#164) cites an answer in the name of the <b>MAHARAM MI'ROTENBURG</b> (this answer also appears in <b>TESHUVOS MAHARAM MI'ROTENBURG CHADASHOS</b> #151, and <b>TASHBATZ KATAN</b> #453). A woman who is not a Besulah cannot become married through 'Kenisah l'Chupah,' bringing her into the Chupah. Rather, she becomes married only through Bi'ah, as the Yerushalmi states (as cited by Tosfos to Yoma 13b, DH l'Chada). Since the Mishnah says that the women were switched 'at the time of entering the Chupah,' it evidently refers only to the type of women who achieve marital status through entering the Chupah, or women who never had relations before.
</p><p>
(c) The <b>TOSFOS HA'ROSH</b> cites a different answer in the name of the <b>MAHARAM MI'ROTENBURG</b>. The Gemara's inference is from the fact that the Mishnah says 'at the time of entering the Chupah.' Of what relevance is the ceremony of Chupah in this case? The Mishnah could have said simply that the men switched their wives; it did not need to add that they entered the Chupah. The Mishnah apparently intends to teach that had the men switched their wives without a Chupah, each man would have been obligated to bring only three Chata'os and not four. There would have been no obligation to bring a Chatas for the Isur of 'Eshes Ish.'
</p><p>
Why would there have been no Isur of 'Eshes Ish' without a Chupah? How does the Chupah affect the Isur of 'Eshes Ish'? That Isur takes effect at the time of Erusin, not at the time of Chupah (Nisu'in)! It must be that the Mishnah discusses a case in which each woman is not an 'Eshes Ish' before the Chupah, but rather a 'Na'arah Me'urasah.' When a man has relations with another man's 'Na'arah Me'urasah,' the punishment is Sekilah (and not Chenek, the punishment for transgressing the normal Isur of 'Eshes Ish'). The Mishnah in Kerisus (2a) excludes the Isur of 'Na'arah Me'urasah' from its list of Isurim punishable with Kares and which obligate one to bring a Korban Chatas. 
</p><p>
Since the status of 'Na'arah Me'urasah' apply only to a woman who is a Besulah (as the Torah states in Devarim 22:23), the Mishnah obviously refers to a woman who never had relations before. This is the basis of the Gemara's question. 
</p><p>
The assertion of the Maharam mi'Rotenburg that adultery with a 'Na'arah Me'urasah' is not punishable with Kares and does not obligate one to bring a Korban Chatas is novel. (The Maharach Or Zaru'a asserts that the Maharam mi'Rotenburg later rescinded this view.) His suggestion has prompted lengthy discussions among the Acharonim. (See, for example, <b>OTZAR SIFRA</b> of Rav Menachem Zemba zt'l Hy'd, Mishnah 5, at the end of 'Binyan Av mi'Kasuv Echad'; <b>TO'AFOS RE'EM</b>, Yere'im ha'Shalem 7:3; <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b> to Sanhedrin 53a; <b>KLI CHEMDA</b>, Parshas Ki Setzei 11:1; see also Insights to Kerisus 2:2).
</p><p>
Why, though, should there be no Kares and no Korban Chatas in the case of a 'Na'arah Me'urasah'? After all, a 'Na'arah Me'urasah' is also an 'Eshes Ish' (<b>RASHASH</b> to Sanhedrin 51b; <b>ARUCH LA'NER</b> 33b). Moreover, the laws of a 'Na'arah Me'urasah' should be <i>more</i> stringent than the laws of a normal 'Eshes Ish' because the punishment (Sekilah) is more severe. Why, then, does the Maharam mi'Rotenburg suggest that the case of a 'Na'arah Me'urasah' is <i>less</i> stringent (in that it has no Kares and no Korban Chatas)?
</p><p>
The <b>CHESHEK SHLOMO</b> and <b>RAV MENACHEM ZEMBA</b> (loc. cit.) suggest that the Maharam mi'Rotenburg means that the prohibition of 'Na'arah Me'urasah' is a 'Davar she'Hayah bi'Chelal v'Yatza Lidon b'Davar he'Chadash' -- it was originally included in the category of 'Eshes Ish' but was removed from that category with respect to a novel Halachah (it is punishable with Sekilah, while every other Isur of 'Eshes Ish' is punishable with Chenek). Since the Torah did not explicitly return it to the category of 'Eshes Ish,' the Halachos of 'Eshes Ish' do not apply to the Isur of 'Na'arah Me'urasah.' (See the <b>TOSFOS YESHANIM</b> 4a, DH Ela Ov, who implies that when the Torah prescribes a punishment of Sekilah instead of Chenek for a certain transgression, this does <i>not</i> constitute being 'removed from that category with respect to a novel Halachah' and the principle of 'Davar she'Hayah bi'Chelal v'Yatza...' does not imply. See also Rav Menachem Zemba, ibid.)
</p><p>
The Acharonim cite numerous proofs against the Maharam mi'Rotenburg's proposal. The Toras Kohanim (Dibura d'Chova 1:11) derives from a verse that one who sins with a 'Na'arah Me'urasah' <i>is</i> obligated to bring a Korban Chatas. (Although the words of the Toras Kohanim clearly refute the Maharam mi'Rotenburg's assertion that no Korban Chatas is brought for transgressing the Isur of 'Na'arah Me'urasah,' in one respect the Toras Kohanim supports the Maharam mi'Rotenburg's assertion: the Toras Kohanim indicates that a 'Na'arah Me'urasah' is indeed different from all other cases of 'Eshes Ish,' for a special verse is needed to teach that one is liable for a Chatas.) <b>RASHI</b> in Kesuvos (3a, DH Shavyuhah) alludes to this Toras Kohanim, and the <b>RAMBAM</b> seems to conclude that the Isur of 'Na'arah Me'urasah' is punishable with Kares and Chatas (Hilchos Isurei Bi'ah 1:1 and 6; Sefer ha'Mitzvos #352). (If Na'arah Me'urasah does not share the Halachos of the other Arayos because it is punishable with Kares, there may be grounds to argue that one should not be liable for Ha'ara'ah with a 'Na'arah Me'urasah'; see Yevamos 54b.)
</p><p>
The fact that the Mishnah in Kerisus does not list 'Na'arah Me'urasah' among the transgressions for which one is Chayav Kares does not prove that 'Na'arah Me'urasah' is not Chayav Kares. As the Aruch la'Ner (ibid.) points out, perhaps the reason why 'Na'arah Me'urasah' is not listed is that it is included in the Isur of 'Eshes Ish,' which <i>is</i> listed.
</p><p>


lvr: 31
dfh: b
trd:
</p><p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (Rava):</font></b> Tamar became pregnant from her first 
          Bi'ah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer (Rav Nachman):</font></b> She enabled this by crushing her 
          Besulim with her finger.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> All girls of Rebbi's house who did 
               this were called Tamar.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Her first Bi'ah was not with Yehudah. She had 
          previously married Er and Onan!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Er and Onan had Bi'ah she'Lo k'Darkah (in the 
          anus) with her.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Beraisa - R. Eliezer):</font></b> All 24 months (of 
          nursing), her husband spills the semen outside (lest 
          pregnancy cause premature weaning and death of the baby).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Chachamim:</font></b> This is like Er and Onan (it is 
               forbidden)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> It is like them in one respect, unlike them in 
          another.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is like them regarding 'V'Shiches Artzah' 
               (wasting seed);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is unlike them regarding Lo k'Darkah. The Beraisa 
               discusses Bi'ah k'Darkah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> The above verse teaches about Onan. How do we 
          know that Er did so?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer (Rav Nachman bar Yitzchak):</font></b> '(Hash-m) killed also 
          him' - he died for the same sin.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> Granted, Onan did so because he knew that the 
          child would not be considered his (but rather, like his 
          brother's). But why did Er do so?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer:</font></b> He did not want her beauty to be diminished 
          through pregnancy.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  (Beraisa - R. Yehudah):</font></b> '(When a man has Bi'ah) <i>Osah</i> 
          (with her, they become Temei'im)' - this excludes a Kalah 
          (the first Bi'ah is not Metamei);
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  Chachamim say, this excludes Bi'ah she'Lo k'Darkah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion (Hon, Rav Nachman' son):</font></b> R. Yehudah holds 
               that the Torah was concerned for a Kalah's make-up! 
               (She is Tahor so she need not remove it for 
               Tevilah.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rav Nachman):</font></b> No, it is because she 
               cannot become pregnant from Bi'ah Rishonah.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Question:</font></b> What is the source of the dispute?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer:</font></b> Chachamim expound 'Shichvas Zera' - to exclude 
          Ha'ara'ah (the first stage of Bi'ah); 'Osah' excludes 
          she'Lo k'Darkah;
<br> <b>    <b><font color='darkgreen'>(t)</font></b></b>  R. Yehudah excludes both of these from 'Shichvas Zera'. 
          'Osah' excludes a Kalah.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BEING UNMARRIED CAN CAUSE STERILITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Ravin):</font></b> If a woman was 10 years without a husband after 
          she was once married, she will not give birth.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> If she was planning to remarry, she can 
          become pregnant.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  (Rava married Bas Rav Chisda more than 10 years after she 
          was widowed.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rava (to her):</font></b> Chachamim suspect you (that you had Zenus 
          in the interim, and this preserved your fertility)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  His wife:</font></b> I was planning to marry you.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  A woman (to Rav Yosef):</font></b> I waited 10 years before 
          remarrying, and I gave birth!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rav Yosef:</font></b> Do not discredit the sages' words!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She admitted that she had had Bi'ah with a Nochri in 
               the interim.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHO MUST WAIT BEFORE MARRYING?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Version #1 (Shmuel):</font></b> Any woman who had Bi'ah must wait 
          three months before marrying someone else (to avoid 
          doubts about who the father is if she will gave birth 
          nine months later), except for a minor who converted or 
          was freed from slavery;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  A minor Yisraelis must wait.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> What is the case?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1:</font></b> She did Mi'un (to leave a mid'Rabanan 
          marriage).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rejection:</font></b> Shmuel says that she need not wait after 
          Mi'un!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2:</font></b> She was divorced.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  Shmuel already taught that she must wait!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If a minor did Mi'un, she need not wait 
               three months. If he gave her a Get, she must wait.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> She was Mezaneh.
<br>


lvr: 31
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO MUST WAIT BEFORE MARRYING? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Chachamim decreed that a minor must wait (after Zenus, 
          even though she cannot be pregnant) lest an adult not 
          wait.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> We do not make such decrees!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If they are minors, they return to their 
               husbands immediately.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1 (Rav Gidal):</font></b> That was a Hora'as Sha'ah (a 
          special ruling for an urgent need at the time).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> This implies that the case happened (but the 
          Mishnah does not say so)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Correction:</font></b> Rather, it was like a Hora'as Sha'ah. It is 
          not common that wives get mixed up (therefore, we did not 
          decree).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Version #2 (Shmuel):</font></b> Any woman who had Bi'ah must wait 
          three months before marrying someone else, except for an 
          adult who converted or was freed from slavery. A minor 
          Yisraelis need not wait.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> What is the case of the minor?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #1:</font></b> She did Mi'un.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection:</font></b> Shmuel says that she need not wait after 
          Mi'un!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2:</font></b> She was divorced.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  Shmuel already taught that she must wait!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If a minor did Mi'un, she need not wait 
               three months. If he gave her a Get, she must wait.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> The minor had Zenus.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Zenus is uncommon for a minor, so we do not decree 
               due to an adult.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> Zenus is common for a convert or freed slave 
          (before the conversion/freedom). We should decree!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> Shmuel holds like R. Yosi:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> A girl who converted or was 
               freed from captivity or from slavery must wait three 
               months;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi permits her to become Mekudeshes and get 
               married immediately. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (Rabah):</font></b> R. Yosi holds that a woman that has Zenus uses a 
          wad to prevent pregnancy.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> Granted, a convert intended to convert, 
          and was careful (to avoid pregnancy three months 
          beforehand) so she would know whether her child was 
          conceived before or after conversion;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We also understand why a captive or freed slave 
               would be careful, if she heard from her master (that 
               she will be freed or taken to a place where people 
               will redeem her).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if a slave went free because the master 
               dismembered her tooth or eye, she did not know to be 
               careful beforehand!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Yosi agrees in such a case.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Beraisa - R. Yehudah):</font></b> A girl that was 
               seduced or raped must wait three months;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Yosi permits her to become Mekudeshes or married 
               immediately.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> R. Yosi holds that a girl that is raped 
          turns over (after Bi'ah so the semen will fall out, to 
          avoid pregnancy);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah is concerned lest she did not turn over 
               well.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE WOMEN ARE DISQUALIFIED FROM 'TERUMAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If they are Kohanos (they are disqualified 
          from Terumah).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Also a Yisraelis is disqualified from Terumah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> It means, if they were wives of Kohanim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Also a Yisrael's wife is disqualified (through 
          Bi'as Ones with another man)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Amram):</font></b> Rav Sheshes derived from a Mishnah 
               (53b) that if a Yisrael's wife was raped, even 
               though she is permitted to her husband, is 
               disqualified from Kehunah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> Our Mishnah teaches that if they are 
          Kohanos married to Yisraelim, they are disqualified from 
          (returning after being widowed or divorced to eat) 
          Terumah of their fathers' houses.
<br>
<br>

sjt:
<font><b>1) THE VERDICT OF SHLOMO HA'MELECH IN THE BATTLE FOR THE BABY </b></font><b>
<br></b>The Mishnah teaches that if a man is childless when he dies but his widow is pregnant and later gives birth to a child, but the child dies within thirty days of birth, the child is deemed to have been a stillborn ('Nefel') and the woman is obligated to do Yibum.
</p><p>
Based on the teaching of this Mishnah, the <b>ME'IRI</b> (Yevamos 17a) offers an ingenious insight into the actions of Shlomo ha'Melech. (See also <b>DERASHOS IBN SHU'IB</b> to Parshas Mishpatim, <b>SHEMEN ROKE'ACH</b> (by the author of <b>SHA'AR HA'CHAZAKOS</b>) in his introduction, and <b>YEDEI MOSHE</b> to Shir ha'Shirim Rabah 1:1:10).
</p><p>
The Navi relates that when Shlomo ha'Melech was twelve years old, Hash-m promised to grant him immense wisdom; he would be the wisest man ever to live (Melachim I 3:12). To illustrate that Hash-m fulfilled His promise, the Navi relates an incident in which Shlomo arbitrated a complicated dispute and resolved the case with his immense wisdom.
</p><p>
Two women came to the king with a dispute over a child. One woman claimed that the child was hers, while the other woman claimed that the child was hers. The Navi records in detail each woman's claim:
</p><p>
'One woman said: 'My master, I and this woman dwell in the same house, and I gave birth while with her in the house. On the third day after I gave birth, this woman gave birth as well. We live together -- there is no outsider with us in the house; only the two of us were in the house. The son of this woman died that night, because she reclined upon him. She arose during the night and took my son from my side while I was asleep, and laid him in her bosom, and her dead son she laid in my bosom. When I arose in the morning to nurse my son, behold, he was dead! But when I observed him [later on] in the morning, I realized that he was not the son to whom I had given birth!'
</p><p>
'The other woman replied: 'It is not so! My son is the live one, and your son is the dead one.' But the first woman said, 'It is not so! Your son is the dead one, and my son is the live one!' And they went on speaking before the king.
</p><p>
'The king said, 'This one claims: My son is the live one, and your son is the dead one. And the other claims: It is not so -- your son is the dead one, and my son is the living one.'
</p><p>
'So the king said, 'Get me a sword!' and they brought a sword before the king.
</p><p>
'The king said, 'Cut the living child in two and give half to one and half to the other.'
</p><p>
'The woman whose son was the live one turned to the king because her compassion was aroused for her son, and she said, 'Please, my master, give her the living baby, and do not kill it!' But the other one said, 'Neither mine nor yours shall he be. Cut!'
</p><p>
'The king spoke up and said, 'Give to her (the first woman) the living baby and do not kill it; she is his mother!'' (I Melachim 3:16-27)
</p><p>
There is an obvious difficulty with the narrative as it is recorded by the Navi. The dishonest woman obviously was interested in taking the child for herself, for that is the reason why the case was brought before the court. However, when the real mother offered to let the liar keep the child in order to spare its life, the liar refused and insisted that the court kill the baby -- 'Neither mine nor yours shall he be. Cut!'
</p><p>
Why did she suddenly lose interest in having the child for herself? Moreover, although Shlomo's wisdom gave him the insight to foresee that one of the women would back down when she heard of his intention to kill the infant, how could he possibly have known that the other woman would react with an emphatic insistence on complying with the brutal 'compromise'? Surely he should have assumed that the dishonest woman would respond, 'Thank you -- you have finally admitted that the child is mine! I see that although you are cruel enough to steal my child, you are not so ruthless as to see him killed for your lie!' How did Shlomo plan to respond to such a reaction? Would the liar have walked away victorious?
</p><p>
The Me'iri explains the process of Shlomo ha'Melech's reasoning as follows. The Midrash (Koheles Rabah 10:16; Shir ha'Shirim Rabah 1:1:10) relates that the reason why both women were so desperate to have the living child declared theirs was that they were both potential Yevamos. The husbands of both women had died with no other living children. Whichever woman would be judged to be the childless woman would not only lose the infant, but would also be stranded in the unpleasant situation of a Yevamah, bound to marry the brother of her deceased husband. Another Midrash relates that the husbands of the two women were a father and his son. Hence, one woman was the mother-in-law of the other.
</p><p>
Based on the facts related by the Midrashim, a telling scenario emerges. The two women -- the mother-in-law and her daughter-in-law -- had just become bereaved of their husbands, and each one needed a living child to exempt her from Yibum. Both women birth to babies. Before thirty days had passed since their birth, one baby died, as the verse states. The death of the child meant that his mother now became subject to the laws of Yibum. This was the motivation of the dishonest woman in her attempt to kidnap the other woman's child.
</p><p>
Shlomo ha'Melech understood that if the mother-in-law's child was the child that died, the mother-in-law would have had no reason to try attempt to seize her daughter-in-law's child. If the living child was not her own child, at least it was her <i>son's</i> child, and a man's grandchild suffices to exempt a woman from Yibum (Yevamos 70a). Only the daughter-in-law had a motive to lie and to claim that the child was hers. If her baby had died within thirty days of birth, then her husband died childless and she is bound to her husband's brother as a Yevamah.
</p><p>
Who was the brother of the deceased husband? The brother was none other than <i>the living baby</i>, her mother-in-law's child and her deceased husband's brother! This baby was the only living brother of her husband; there were no other older brothers because, as the Midrash points out, the mother-in-law was a potential Yevamah herself. The daughter-in-law's husband had no living children except for the baby in question.
</p><p>
Since her brother-in-law was a newborn infant, the daughter-in-law would need to wait thirteen years before this brother would be able to perform Chalitzah with her and free her to marry others, since a minor may not perform Chalitzah (Yevamos 105b). Accordingly, she had a very strong motive to claim that the living baby was her own child.
</p><p>
Shlomo ha'Melech realized all of this. He understood that since the only one with a strong motive to lie was the daughter-in-law, the child must really belong to the mother-in-law. In order to confirm his deduction, he ordered that the child be cut in half. What would the cutting of the child accomplish?
</p><p>
If the child were to be killed, the daughter-in-law would be freed from her obligation of Yibum since the living baby was her only brother-in-law. In fact, from the daughter-in-law's perspective, killing the child would be an even more ideal solution than taking the child for herself. Although by kidnapping the child she might convince the court that she was not a Yevamah, she would always know that the child was not really hers and that she was not permitted to remarry until Chalitzah was performed. By having the baby killed, however, she would be fully released from the obligation of Yibum! This is the reason why the daughter-in-law suddenly lost interest in keeping the child when she saw that Shlomo ha'Melech was ready to kill the child. The death of the child would serve her interests far better than taking the child for herself. Hence, 'Cut!' she insisted.
</p><p>
Shlomo ha'Melech foresaw that this would be the woman's reaction to his suggestion. By manipulating the situation in such a way that the woman would be led to make such a seemingly ludicrous statement, Shlomo ha'Melech revealed her true intentions and he demonstrated beyond any doubt that the daughter-in-law was lying.
</p><p>


<font><b>2) PERFORMING YIBUM WITH A PREGNANT YEVAMAH</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan and Reish Lakish disagree about whether Yibum and Chalitzah performed with a pregnant Yevamah ('Me'uberes') takes effect in the event that the baby she is carrying dies. According to Rebbi Yochanan, if the baby born later dies within thirty days of birth, the baby's death shows retroactively that the father was childless, the obligation of Yibum was in force ('Tigli Milsa l'Mafrei'a'), and the Yibum or Chalitzah which the woman did while pregnant was effective (see Chart). Reish Lakish argues that the obligation to do Yibum cannot be determined retroactively, and thus the act of Yibum or Chalitzah she did at that time was ineffective.
</p><p>
The Gemara cites proof for Rebbi Yochanan's opinion from the Mishnah. The Mishnah teaches that if a Yavam performed Yibum with a pregnant Yevamah and the baby died shortly after birth (acquiring the status of a stillborn), the Yavam may remain married to the Yevamah ('Yekayem'). This ruling demonstrates that Yibum with a Me'uberes <i>is</i> effective. Reish Lakish responds that 'Yekayem' means that the Yavam must first perform another act of Yibum with her (since the first act was not valid) and only then may he remain married ('Yachzor v'Yiv'ol v'Yekayem').
</p><p>
It is clear from the Mishnah that if the Yavam performed Yibum with the Me'uberes and the baby died shortly after birth, the Yavam and Yevamah are <i>not</i> obligated to bring a Korban Chatas for their act of relations even though they did <i>not</i> fulfill the Mitzvah of Yibum at that time, according to Reish Lakish. Why, though, are they not Chayav? Since the act of Yibum was invalid, the Yavam had relations with a woman who was forbidden to him because of 'Eshes Ach she'Lo b'Makom Mitzvah.' They should both be obligated to bring a Korban Chatas.
</p><p>
<b>ANSWER: TOSFOS</b> (DH Tigli) and other Rishonim explain that, according to Reish Lakish, although the Mitzvah of Yibum does not take effect when the Yevamah is pregnant, nevertheless the prohibition of 'Eshes Ach' is not in force. This is because it becomes clear, when the baby dies, that the woman was bound to do Yibum with the Yavam, an obligation which began from the time her husband died.
</p><p>
Tosfos cites proof for his assertion that when a Yavam has relations with a Yevamah in a way which does not qualify as Yibum, nevertheless his act is not considered a forbidden act of relations with an 'Eshes Ach.' The Mishnah later (111b) states that if a Yavam who is a minor (who cannot fulfill the Mitzvah of Yibum until he reaches adulthood) lives with a Yevamah (who is an adult), they may continue living together until he reaches adulthood, at which time he may marry her through Yibum and fulfill the Mitzvah. The fact that the woman is not forbidden to live with the minor before he becomes an adult shows that an act of relations with a Yevamah which does not qualify as Yibum is nevertheless not considered a transgression of the prohibition of 'Eshes Ach.'
</p><p>
This principle may be understood in light of the opinion of the <b>RASHBA</b> (see Insights to Yevamos 7:1:a, 10:1:b, and 20:3). The Rashba maintains that at the moment the woman falls to Yibum, the prohibition of 'Eshes Ach' is removed completely and from that moment onward the woman is not forbidden to the Yavam. Whether or not they fulfill the Mitzvah of Yibum, relations are permitted. Accordingly, in the case of Yibum with a Me'uberes and in the case of a Yibum with a Yavam who is a minor, there is no prohibition of 'Eshes Ach.'
</p><p>
(Even Tosfos may agree with this approach. Tosfos equates the Mitzvah of Yibum with the principle of 'Aseh Docheh Lo Sa'aseh' (see Insights to 7:1:b) and explains that the prohibition of 'Eshes Ach' is removed entirely so that the Yavam may fulfill the Mitzvah of Yibum with the Yevamah. Once the prohibition is removed for the sake of the Mitzvah, it remains removed entirely from the object (or, in this case, the woman) even when the Mitzvah is not fulfilled. A similar concept exists with regard to the Mitzvah to place Tzitzis on a garment of Sha'atnez; see Tosfos to Kesuvos 40a, DH Kegon. Since the Torah suspends the Lo Ta'aseh of Sha'atnez for the Mitzvah to make Tzitzis with Techeles, the Lo Ta'aseh is also suspended even where it is not necessary for the Mitzvah of Techeles, such as when one uses Sha'atnez for the white threads alone.)
</p><p>
However, <b>RASHI</b> (52a, DH Nasan Lo) writes that the reason why an ordinary form of Kidushin (Kesef or Shtar) cannot take effect between a Yavam and a Yevamah is that Kidushin cannot take effect with an 'Eshes Ach.' The Torah permits a Yavam only to do Yibum, but not to marry the woman in the same manner in which one marries any other woman. Rashi implies that the Yevamah is still forbidden as an 'Eshes Ach' even after she falls to Yibum. Why, according to Rashi, is there no obligation to bring a Korban Chatas when the Yavam performs Yibum with a Me'uberes (according to Reish Lakish), and why is a minor permitted to live with an adult Yevamah (in the case of the Mishnah later, 111b)?
</p><p>
The Gemara here clearly implies that there is no actual prohibition of 'Eshes Ach' after the woman falls to Yibum but before Yibum is performed. What does Rashi mean when he says that normal Kidushin cannot take effect with a Yevamah because Kidushin cannot take effect with an 'Eshes Ach'?
</p><p>
(a) Some Acharonim explain that when Rashi states that Kidushin does not take effect with a woman who is prohibited as an Ervah, this is not necessarily because the <i>Isur</i>, the prohibition, of Ervah prevents the Kidushin from taking effect. Rather, it does not take effect because of the '<i>Shem</i>' Ervah -- her title or status as his <i>relative</i>. Rashi (52a) does not mean that a Yevamah remains prohibited with an <i>Isur</i> of 'Eshes Ach' before the actual Yibum is done, but that she is still considered an 'Eshes Ach' (for that is the <i>reality</i> of her relationship to him; she is the wife of his brother) even though the Isur is no longer in effect and the Yavam is permitted to live with her (because the Torah permits one to live with his 'Eshes Ach' in a situation in which the Mitzvah of Yibum applies). (See <b>KOVETZ HE'OROS</b> 3:3-4.)
</p><p>
(b) The <b>CHIDUSHIM</b> U'VI'URIM (3:1) explains Rashi's intention differently. Rashi does not mean that she is an 'Eshes Ach' even <i>after</i> she falls to Yibum. Rather, Rashi means that she <i>was</i> an 'Eshes Ach' <i>before</i> she fell to Yibum, and the Torah removed the Isur of 'Eshes Ach' at the time she fell to Yibum. It is logical to assume that the Torah removed the Isur of 'Eshes Ach' only in order for her to do Yibum; the Torah did not intend to permit the Yavam to effect a normal Kidushin with her. Therefore, although the Isur of 'Eshes Ach' is no longer present, nevertheless Kidushin cannot take effect with her because the laws of <i>Yibum</i> require that an act of Yibum be done, and they preclude the possibility of acquiring her through normal Kidushin.
</p><p>
According to both explanations, Rashi and the Rashba are in agreement about the status of a Yevamah at the time she falls to Yibum: as long as there exists an obligation of Yibum, there exists no Isur of 'Eshes Ach' between the Yavam and Yevamah. Rashi and the Rashba also agree that if the Yavam does Yibum and then divorces her, a special verse is needed to teach that the allowance to marry her is extended and she is not an 'Eshes Ach' to the Yavam after the divorce (8b). The only possible point of dispute between Rashi and the Rashba is a case in which the Mitzvah of Yibum or Chalitzah has not yet been fulfilled, and one of the brothers becomes exempt from fulfilling the Mitzvah for some reason. Is the Isur of 'Eshes Ach' still removed (Rashba), or is the Isur of 'Eshes Ach' reinstated such that it takes effect again (Rashi)?
</p><p>
(c) Perhaps Rashi maintains that if Yibum is eventually performed by the brother who lived with the Yevamah prior to Yibum (in the case of the Mishnah here, if he performs Yibum after the Me'uberes gives birth to a stillborn, or in the case of the Mishnah later (111b), if the minor becomes an adult and fulfills the Mitzvah of Yibum with his wife), all of the previous acts of relations he had with her are considered preliminary and preparatory acts to the Mitzvah of Yibum. They are considered to have been part of the Mitzvah, and thus they do not constitute transgressions.
</p><p>
This may explain why the Gemara insists that according to Reish Lakish, the brother who lives with the Me'uberes <i>must</i> perform Yibum after she gives birth to a stillborn.
</p><p>
(d) Rashi may follow the opinion expressed by the <b>RITVA</b> here in the name of the <b>RE'AH</b> (or <b>MAHARAM</b> according to an alternate Girsa). The Ritva asks <i>why</i> Reish Lakish does not accept the apparently obvious logic of Rebbi Yochanan, that there is a 'Giluy Milsa l'Mafrei'a' that the Yevamah was obligated to do Yibum once her baby turns out to be a stillborn. For all other Torah laws, a stillborn is retroactively considered <i>not</i> to have been a viable child. Why, then, is the act of Yibum not valid retroactively?
</p><p>
The <b>RITVA</b> gives two answers. He explains in the name of the <b>RE'AH</b> that since, at the time of Yibum, the baby might not have possessed the mortal defect which eventually caused it to die, the act of Yibum with the woman could not have been a valid Yibum -- the woman was carrying a healthy child at the time. Even if she falls to Yibum retroactively when the child dies, the act of Yibum does not become valid retroactively, because at the time it was done the woman was carrying a healthy child; the defect formed only after the act was done.
</p><p>
In his second answer, the Ritva says that relations with the woman cannot be considered a valid act of Yibum when there is no way for the Yavam to know for certain, at that moment, whether the woman is obligated to do Yibum.
</p><p>
The difference between the two answers is whether Reish Lakish maintains that the act of Yibum <i>certainly</i> did not take effect, or whether he maintains that there is a <i>doubt</i> and no way to determine whether or not it took effect. If the latter is true (as the Re'ah posits), the Yavam may not be obligated to bring a Korban Chatas because there is a strong possibility that the child was <i>not</i> viable at the time of Yibum (since it turned out to be a stillborn).
</p><p>
In the case of the minor who performed an act of Yibum with an adult Yevamah, Rashi may understand that Yibum of a minor <i>does</i> take effect mid'Oraisa (if he is at least nine years old), and only mid'Rabanan must he wait until he reaches adulthood. Accordingly, the Yevamah transgresses no Isur d'Oraisa when she continues to live with him before he reaches adulthood. (See <b>TOSFOS</b> to Kidushin 19a, DH umid'Oraisa, and Insights to Yevamos 39:2.) (M. Kornfeld)
</p><p>


