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Yevamos, 23

1) WHICH SISTERS ARE INCLUDED IN THE ISUR OF "ACHOSO"

QUESTION: The Gemara says 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 Isur of "Achoso," in specific, a sister born to a Shifchah or to a Nochris. The Gemara asks that perhaps the verse is excluding a sister born from a union of Chiyuv Kares. The Gemara answers that the verse cannot be excluding such a sister, because the verse says, "Moledes Bayis u'Moledes Chutz," which means that the Isur of "Achoso" applies to both a sister from a union where the father is allowed to remain married to his wife, and to a sister from a union where the father is required to separate from his wife (because of an Isur Kares); in either case, the Isur of "Achoso" applies to the sister, says the Gemara, because the verse ends "Achoscha Hi" -- "she is your sister."

The Gemara then asks that perhaps the verse of "Moledes Bayis u'Moledes Chutz" means to teach that the Isur applies to a sister born to a Shifchah or a Nochris, and that is the sister about which the Torah writes "Achoscha Hi.". The Gemara answers that the verse cannot be including such sisters, because the other verse already excludes them from the Isur.

Why does the Gemara cite the words "Achoscha Hi" here? The words "Moledes Bayis u'Moledes Chutz," which include a sister from Chayavei Kerisus, are in Vayikra 18:9, where the words "Achoscha Hi" do not appear at all! The words "Achoscha Hi" appear in a later verse (Vayikra 18:11) which discusses "Bas Eshes Avicha!" If anything, the Gemara should have said that the sister from the union of "Moledes Bayis u'Moledes Chutz" is Asur because the verse says about her, "Lo Segaleh Ervasa." (M'LO HA'RO'IM)

(The words "Achoscha Hi" appear to indeed be the original Girsa in the Gemara; the Rishonim cite the Gemara with those words as well -- see RIVAN.)

ANSWER: According to Rebbi Yosi b'Rebbi Yehudah, the later verse that says "Bas Eshes Avicha" and which ends with "Achoscha Hi" is *not* teaching an Isur, but rather is excluding a certain type of sister from the Isur, as we have learned. 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," meaning 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, but if she in some way fits the category of "Bas Eshes Avicha," then the verse does *not* intent to exclude her from the Isur. Thus, the words "Bas Eshes Avicha" is the limitation (Mi'ut), while the words "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 we could have learned that Moledes Chutz teaches other Halachos, such as what Tosfos on the top of 3a, DH Bito, cites from the Targum.)

Accordingly, that is what the Gemara is saying when it quotes the words "Achoscha Hi." The Gemara is adding that we should not exclude all types of sisters who come from unsanctioned unions; one of the sisters that is included in the Isur is the one mentioned in the earlier verse of "Moledes Bayis u'Moledes Chutz" -- a sister that come from a union of Chayavei Kerisus.

23b

QUESTION: The Mishnah discusses a case of a man who was Mekadesh one of two sisters and he forgot or did not know whom he was Mekadesh. If the man dies childless and he has one brother, that brother must do Chalitzah with both women. If he has two brothers, then one brother does Chalitzah with one woman, and the other brother may then do Yibum with the other woman. The Gemara asks what is the Mishnah teaching us, since this seems rather obvious. It answers that the Chidush of the Mishnah is in the case where the man has two brothers, in which case the first brother must do Chalitzah with the first woman and only then may the second brother do Yibum with the second woman. It may not be done the other way around, having the first brother do Yibum, and the second brother do Chalitzah, for if the first brother does Yibum, he might be committing the Isur of marrying the sister of his Yevamah, or "Achos Zekukaso."

(a) Why does the Gemara say that we can infer this Chidush only from the second case of the Mishnah, where the man who dies has two brothers? Even when he has only one brother, the same Halachah dictates how to act: the surviving brother must do Chalitzah to both women and may not to Yibum to either one, because if he does Yibum to the first one he might be marrying "Achos Zekukaso," and if he does Yibum to the second, he might be marrying "Achos Chalutzaso!" (ARUCH LA'NER)

(b) Why does the Gemara say that had there been no Isur of "Achos Zekukaso," we would have assumed that the first brother may do Yibum with the first woman and then the second brother may do *Chalitzah* with the second woman? The Gemara should have said that we would have thought that *both* brothers may do Yibum with both sisters! Once Yibum or Chalitzah is done with the first sister, the second one can certainly do Yibum -- as the Mishnah indeed rules in this case: the first does Chalitzah and the second may even do Yibum! (TOSFOS REBBI AKIVA EIGER on the Mishnah)

ANSWERS:

(a) The ARUCH LA'NER answers the first question and says that the Gemara is pointing out that from our Mishnah we see "Yesh Zikah," and thus there is an Isur of "Achos Zekukaso." This can only be seen from the second case in the Mishnah and not from the first. In the first case -- when there is only one brother -- that brother may not do Yibum with the first sister even if we hold "Ein Zikah." This is because by doing Yibum with her, he might be forfeiting the Mitzvah of Yibum ("Bitul Mitzvas Yivmim"), since it is possible that the other sister is the real Yevamah. That is, 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!

The Gemara's proof that "Yesh Zikah" is only from the second case, where there are two brothers. Even if the first brother does Yibum with the first sister when the *second* sister was the real Yevamah, that brother did not forfeit the Mitzvah of Yibum, because the other brother can do it!

(Even though we learned earlier (18a) that it is prohibited to enter a situation of possibly forfeiting the Mitzvah of Yibum even when there *is* another brother, because that brother might die before doing Yibum, this case is different. Here, there are *two* doubts (a Safek Sfeika): First, perhaps the brother will not die, second, even if he does die perhaps the woman with whom the first brother did Yibum was the real Yevamah. It is not prohibited to marry a woman when there are *two* reasons to question whether he is forfeiting the Mitzvah of Yibum (see top of Yevamos 27b)!)

That is why the Gemara can only find proof 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 is following the opinion that "Yesh Zikah," and does not consider the possibility that the Mishnah holds Ein Zikah, but one may not forfeit the Mitzvah of Yibum.

(b) The Aruch la'Ner's approach does not resolve Rebbi Akiva Eiger's question. Perhaps we can suggest another approach which will answer both questions.

The Gemara does not take into account the possibility that the reason for the Mishnah (that the first brother must do Chalitzah and the second brother may then do Yibum) is because of the Isur to be Mevatel the Mitzvah of Yibum. The Gemara maintains that since the only problem is a *Safek* "Achos Zekukaso" (since only *one* of the sisters is actually the Yevamah), there is no Isur to be Mevatel a *Safek* Mitzvah of Yibum by marrying a woman who *might* be the sister of the Yevamah. The Chachamim, we know, are lenient in the case of a Safek Isur d'Rabanan (the Isur d'Rabanan here being the Isur to be Mevatel the Mitzvah of Yibum). Rather, the only reason the Chachamim were stringent in this Mishnah, which is a case of a Safek Yevamah, is because of the Safek Isur of "Achos Zekukaso" or "Achos Chalutzaso" which is more Chamur than a normal Isur d'Rabanan, as the Rishonim here write. The Chachamim were stringent in this case because 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 a normal Safek Isur d'Rabanan.

If the Gemara knew that the reason of the Mishnah for prohibiting both brothers from doing Yibum was because of the Safek Isur of "Achos Zekukaso," why, then, did 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 to marry "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," for otherwise it should be permitted to marry the first sister (as the Aruch la'Ner asked).

It could be that the reason the Gemara did not prove the Isur of "Achos Zekukaso" from the first case of the Mishnah is because we know that the brother would certainly be prohibited from doing Yibum with the second sister if he did Yibum with the first, because of the Isur d'Oraisa of "Achos Ishto." The only question is why the Mishnah did not permit the brother to do Yibum with the first sister and then do Chalitzah with the second. But perhaps the reason the Mishnah does not permit this is because the brother might mix up the order and do Chalitzah first and then do Yibum with the second sister, in which case he will be marrying "Achos Chalutzaso," the sister of the woman with whom he did Chalitzah, who is Asur to him. (Rashi mentions such a Gezeirah earlier on 18a, DH l'Olam Ein Zikah.) That is why the Gemara could not prove from the case in the Mishnah of one brother being required to do Chalitzah with both sisters, that there is an Isur of "Achos Zekukaso." The Gemara had to prove it from the second case, where there are two brothers. In that case, the Mishnah allows one brother to do Chalitzah and the other to do Yibum, and yet we still do not allow the first brother to do Yibum (before Chalitzah is done with the other sister).

This might answer Rebbi Akiva Eiger's question as well. Rebbi Akiva Eiger askes why, in the Havah Amina that there was no Isur "Achos Zekukaso," the Gemara did not assume that *both* brothers may do Yibum with both sisters. The answer is that the Gemara reasoned that it might not be permitted for both brothers to do Yibum to the two Safek sisters who fell to Yibum from the deceased brother, as a Gezeirah for a case of two women who were both actually married to the deceased brother. That is, if we permit the two brothers to do Yibum with these two sisters (when only one of them is the real Yevamah), people will not realize that it is because one of them is not a Yevamah at all, and they will come to permit two brothers to do Yibum with two Yevamos who were married to one man. (We find this Gezeirah in other places as well, such as on 31b.)

Accordingly, it is clear that the Mishnah would not permit both brothers to do Yibum for that reason (the Gezeirah). The Gemara asks, though, that if the Mishnah holds of all of these Gezeiros to prohibit Yibum in the various cases, then 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? If anything, it should have permitted it in the opposite order -- requiring that the first brother do *Yibum* with the first sister, and the second brother do *Chalitzah* with the second sister. This would prevent people from mistakenly assuming that in a case where there is only *one* brother, he may do Chalitzah with the first sister and then do Yibum with the second, thereby transgressing the Isur of "Achos Chalutzaso." If the Mishnah is indeed concerned for such mistakes, it should have specified that in a case of two surviving brothers, the first should do Yibum and only afterward may the second do Chalitzah, so that if a single brother learns from there 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 such a strong Isur 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 thus, retroactively, when he married the first sister there was no Isur of "Achos Zekukaso;" but if he does Chalitzah first and then Yibum with the second sister, then he will be living with his "Achos Chalutzaso" and the Isur will never be removed). Since the Mishnah requires that the first brother do Chalitzah and the second do Yibum, we see that the requirements of the Mishnah are not due to Gezeiros at all, but are based on preventing the Isur of "Achos Zekukaso." (M. Kornfeld)