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Yevamos, 112

1) A WOMAN WHO MAKES A "NEDER" PROHIBITING HERSELF TO ALL MEN

QUESTIONS: The Gemara discusses the Halachah of a married woman who made an oath prohibiting herself (b'Tashmish) to all Jews. The Gemara asks about her status with regard to her husband's brother, after her husband dies. At the time that she made her Neder, did she anticipate falling to Yibum, in which case she had her Yavam in mind when she made her Neder, or did she not anticipate falling to Yibum and did not have him in mind?

RASHI explains that the Gemara's question is as follows. When a woman makes a Neder prohibiting herself to someone, she obviously is only prohibiting herself to someone to whom she would be permitted had she not made the Neder. Does she consider the possibility that she will fall to Yibum and become permitted to the Yavam, and thus she prohibits herself to him as well? Or does she not consider the possibility that she will become permitted to the Yavam and thus she does not have in mind to prohibit herself to him?

The Gemara says that according to Rav, "the Yavam is not like the husband." According to Shmuel, "the Yavam is like the husband." Rashi explains that the woman obviously has in mind to prohibit herself to her husband, since we see that the husband must annul her Neder in order to be permitted to her (as mentioned in the Mishnah quoted by the Gemara earlier). Rav holds that the Yavam is not like the husband and her Neder does not prohibit her to him, and Shmuel argues and says that it does prohibit her to the Yavam.

The Gemara attempts to support Rav's view from our Mishnah (111b). The Mishnah says that when a woman makes a Neder, while her husband is alive, to prohibit her husband's brother from deriving pleasure from her, we force him to do Chalitzah with her. The reason we force him to do Chalitzah is because we assume that she did not consider the possibility that she would fall to him for Yibum, and thus she did not have in mind to prohibit herself to him in such circumstances. Since she did not intentionally prevent the Yavam for performing Yibum, we force the Yavam to do Chalitzah with her.

TOSFOS and the other Rishonim ask a number of questions on Rashi's explanation of the Sugya.

1. Second, if the woman does not have in mind that her Neder should apply to someone to whom she is prohibited already, then the same question could be asked not only about the Yavam, but about every other man in the world to whom she is not married, because right now she is prohibited to them because of Eshes Ish! Similarly, why does the Gemara not ask whether her Neder applies to prohibit herself to the husband of her sister after her sister dies? The Gemara's question is not a question specific to the Yavam!

2. Why does Rav and Shmuel compare the Yavam to "the husband?" The woman's Neder included *all Jews* and not just the husband, and thus Rav should have said that the Yavam is "not like all other Jews," and Shmuel should have said he "is like all other Jews!"

3. Third, it is clear from the Gemara that when a woman makes a Neder while her husband is alive prohibiting her husband's brother from deriving pleasure from her (that is, the case of our Mishnah), she is prohibited to him when she falls to Yibum, even though the woman did not considered the possibility that she might fall to Yibum. Thus, we see that even though she does not consider the possibility that she might fall to Yibum, she *does* have in mind to prohibit herself to him b'Tashmish when she made a Neder not to let him have Hana'ah from her!

ANSWERS: (a) The Rishonim propose various answers for these questions:

1. Regarding the first question, why the Gemara asks only whether she has the Yavam in mind and does not ask whether she has all other men in mind, the RASHBA answers that she certainly has in mind other men who are prohibited to her already because of Eshes Ish, because she knows that she can become permitted to them through Gerushin. Thus, the Gemara does not ask whether or not she includes them in her Neder. Regarding the question of whether she has in mind her sister's husband after the death of her sister, he suggests that perhaps the Gemara's question also applies to that case, but in chose to ask it with regard to one of the two cases (that of Yavam).

The RITVA adds that the question may indeed be specific to the Yavam. In the case of her sister's husband, she certainly considers the possibility that her sister will die and she will become permitted to her sister's husband, because she will become permitted to him whether or not her sister has children. In contrast, she might *not* consider the possibility that her husband will die *without any children* and she will become a Yevamah. That is why the Gemara asks whether she is permitted to the Yavam, and not whether she is permitted to her sister's husband.

2. Although the Rishonim do not suggest answers for the second question asked above, perhaps the first question itself answers the second question -- why Rav and Shmuel say that the "Yavam is (or is not) like the *husband*." The person who is most obviously included in her Neder is her husband, since he is the only one who is otherwise permitted to her. It is not so obvious that she is including other people in her Neder, since she is presently prohibited to them already. That is why Rav and Shmuel compare (or contrast) the Yavam specifically to the *husband*, since it is clear that her Neder includes the husband.

From a close inspection of the words of Rashi (DH Eino k'Ba'al), though, it would seem that he had another answer in mind. The reason why Rav and Shmuel compare the Yavam to the husband is as follows. If the woman's Neder *does* prohibit her to the Yavam, then the husband will suffer as a result, because there will be no one to carry on his name if he dies without children. As such, her Neder might qualify as "Devarim she'Beino l'Veinah," a Neder affecting the relationship between the wife and husband, which the husband is entitled to annul. Thus, the question of the Gemara is not just whether or not she is prohibited to the Yavam, but whether or not the husband needs to annul the Neder between her and the Yavam, or she is permitted without his annulment.

That is why Rav and Shmuel compare the Yavam to the husband: according to Shmuel, the woman's Neder prohibiting her pleasure to the Yavam is considered a Neder against the husband which he is entitled to annul, and according to Rav, her Neder does not prohibit her to the Yavam and thus the husband does not need to annul it. The husband, though, is certainly not permitted to annul the part of the Neder that affects all other people in the world, because that does not constitute "Devarim she'Beino l'Veinah."

This will also answer another question of the Rishonim on the explanation of Rashi. Why does the Gemara find it necessary to quote the Mishnah in Nedarim (which discusses the enactment of the Rabanan authorizing the husband to annul his wife's Neder of prohibiting herself to all Jews) as a preface to the question of whether or not the woman's Neder includes the Yavam? That Mishnah seems to have nothing to do with the question of our Gemara! The Mishnah there just says that we are concerned that she is trying to rid herself of her husband, and therefore the Rabanan enacted that he may annul her Neder.

According to what we have explained, we can understand why the Gemara cites that Mishnah. The Gemara cites that Mishnah to show that the Rabanan allowed the husband remain married and to annul the part of his wife's Neder that applies to him, when she prohibits herself to all Jews. The Gemara questions whether he needs to annul the part of her Neder that prohibits her to the Yavam as well, just in case she falls to Yibum afterwards. (M. Kornfeld) 3. Regarding the third question, the RA'AVAD cited by the Rashba answers that in the case of our Mishnah (111b), the woman does not make a Neder prohibiting herself specifically from Bi'ah, but she makes a Neder prohibiting herself from all pleasures from her Yavam, as the Mishnah says, "ha'Noderes *Hana'ah*...." Even if she did not intent to prohibit Bi'ah with the Yavam (since she did not anticipate becoming permitted to him), she certainly did prohibit herself from receiving any other benefit from him. We force him to do Chalitzah because if he does Yibum her life will be miserable, as one cannot live as man and wife with a person from whom one is prohibited to have Hana'ah. That is why he must do Chalitzah and not Yibum.

The RITVA offers a different answer. The Ritva says that in the case of our Mishnah, since she singled out the Yavam by mentioned him specifically when she prohibited all Hana'ah to him, even though she does not anticipate becoming permitted to him b'Bi'ah, she intends for the Neder to prohibit Bi'ah just as it prohibits all of the other Hana'os from him.

(b) TOSFOS and the Rishonim explain the Sugya differently. They say that the question of the Gemara of whether her Neder includes the Yavam is a follow-up of the Halachah in our Mishnah.

1. Our Mishnah says that if the woman had in mind that she might fall to Yibum when she prohibited herself to her husband's brother and intended to prevent Yibum from occurring, then we do not force the Yavam to do Chalitzah. If she did not have in mind the possibility of falling to Yibum and was not trying to prevent Yibum from occurring, then we force the Yavam to do Chalitzah. The Gemara is asking what we assume her intention to be by default, when she prohibits herself to the Yavam during her husband's lifetime.

This provides a clear answer for the first question we asked. The Gemara's question has nothing to do with the fact that a woman does not intend to prohibit a person who is presently prohibited to her for other reasons. To the contrary, *everyone* becomes prohibited to her because of her Neder whether they are presently permitted to her or not. The Yavam is also included in the Neder, and that is why the Mishnah rules that he must perform Chalitzah and not Yibum (answering our third question). The Gemara is only in doubt whether or not she *intended* to prevent Yibum through her Neder.

2. Rav says that "the Yavam is not like the husband." This means that when she says that she is prohibited from all Jews, she is trying to get away from her husband (as we see from the Mishnah in Nedarim), but she is *not* trying to get away from the Yavam, for she does not consider the possibility of Yibum. In that sense, "the Yavam is not like the husband." Shmuel says that she does consider the possibility of being married to the Yavam, and she does intend to get away from both of them with her Neder.

3. There is no question, though, that the Neder *does* take effect with regard to the Yavam, even though he is presently prohibited to her, as we mentioned in the answer to the first question. The question of the Gemara is only whether she *intended* to prevent Yibum.

Why does Rashi not give this simple explanation for the Gemara? Rashi appears to have been bothered by the wording of the Gemara's question. If the Gemara's question had no other practical applications other than the Halachah of our Mishnah, the Gemara would not have had to ask about a woman who made a Neder saying "I am hereby prohibited from *all Jews*." The Gemara could have asked what the Halachah would be in a simple case where she makes a Neder during her husband's lifetime prohibiting herself specifically to her *husband's brother*. (Although the Mishnah says that we assume she does *not* intend to prevent Yibum if she made a Neder while her husband is alive, that might be true only when he has children, who later died as the Gemara explains.) (M. Kornfeld)

112b

QUESTION: The Gemara discusses whether the Rabanan instituted Nisu'in for a Cheresh, Shoteh, Katan, and Ketanah. The Gemara says that for a Shoteh (and Shotah) and for a Katan the Rabanan did *not* institute Nisu'in, while for a Cheresh (and Chareshes) and Ketanah they *did* institute Nisu'in.

Why does the Gemara discuss only Nisu'in? Why does it not ask whether the Rabanan instituted *Kidushin* for a Cheresh, Shoteh, Katan, and Ketanah? Similarly, we find that our Mishnah discusses only the Nisu'in of a Cheresh. Why does it not discuss his Kidushin at all?

Furthermore, an earlier Mishnah (107b) says that the Ketanah who may do Mi'un is one whose mother and brother effected her "Nisu'in." Why does it not mention the *Kidushin* of a Ketanah?

ANSWERS:

(a) The TESHUVOS HA'RIF (1:267-268), in a Teshuvah attributed to RABEINU YEHUDAH ALBARGELONI (author of Sefer ha'Itim), writes that a Ketanah cannot have Kidushin (since she cannot effect a Kinyan), but only Nisu'in. This is why the Mishnah mentions only the "Nisu'in" of a Ketanah. The same is true, presumably, for a Cheresh and Chareshes.

(b) The RIF cited by the RAMBAN (107a) and by other Rishonim rejects this suggestion, because it is clear in many places in the Mishnah and Gemara that a Ketanah does have Kidushin.

For example, the Mishnah (107a) says that according to Beis Hillel, a Ketanah who is an *Arusah* (with only Kidushin) can do Mi'un, and according to Beis Shamai, *only* an Arusah can do Mi'un! Similarly, the Beraisa (108a) gives an example of Mi'un, wherein a girl says, "I do not want the *Kidushin* with which my mother was Mekadesh me," and the Gemara (ibid.) discusses whether it is considered Mi'un when an *Arusah* accepts Kidushin from another person. (See also 109b, where the Gemara discusses the Kidushin of one who was Mekadesh a Ketanah.) In Gitin 65b, the Gemara says that a girl who is old enough to take care of what she receives in return for her Kidushin is "Miskadeshes" through Mi'un. Rashi in our Sugya, DH d'Takinu, also writes that the Rabanan instituted Nisu'in "and Kidushin" for a Cheresh.

Accordingly, apparently whenever the Mishnah or Gemara mentions Nisu'in with regard to a Ketanah, it is not meant as a limiting term, and it means Kidushin as well.

(c) The RAMBAN (107a, also cited by the Rashba and Ritva there) adapts the reasoning of Rabeinu Yehudah Albargeloni, suggesting a compromise between the above-mentioned opinions in order to explain why the Mishnah uses the term "Nisu'in," when discussing the betrothal and marriage of a Ketanah.

A Ketanah perhaps does have Kidushin, but only if she *herself* receives the Kesef or Shtar of Kidushin. If she personally accepts it, then it takes effect. If her mother or brother accepts the Kesef or Shtar on her behalf, though, the Kidushin does not take effect. The logic for this is that the Rabanan did not institute Shelichus for a Ketanah, so nobody can accept her Kidushin for her. In addition, when someone else accepts the Kidushin, the Ketanah does not relate to that action as affecting herself personally, and she has not really agreed to the Kidushin. (We know that the Kidushin of a Ketanah must be with her full consent, 107b.) However, when it comes to Nisu'in where she is actually brought into the home of the husband, the Nisu'in is valid even when it is the mother or brother who gives her over to the husband for Nisu'in, since the Ketanah is also involved in that action. The Mishnayos which mention the Nisu'in of a Ketanah being done through her mother or brother mention Nisu'in because the mother and brother are *not* involved in her Kidushin, but only in marrying her off with Nisu'in. The Mishnayos that mention Kidushei Ketanah are referring to when she accepted the Kidushin herself.

Regarding our Gemara, it is possible that according to the Ramban, the Rabanan did not institute Kidushin for a Chareshes at all (even when she accepts the Kesef or Shtar herself), and that is why the Gemara discusses only whether the Rabanan instituted *Nisu'in* for a Chareshes. Since she never will have Da'as, she is considered to have less Da'as that a Ketanah. The Rabanan required that Kidushin be done with her only in order for it to be followed by Nisu'in. The Kidushin itself, though, is ineffective until the Nisu'in is done. It may therefore be suggested that a Chareshes has *only* Nisu'in, in contrast to a Ketanah who has Kidushin as well.

However, how are we to understand the Beraisa (108a) which says that Mi'un is where the Ketanah says, "I do not want the Kidushin with which my mother was Mekadesh me?" If there is no Kidushin for a Ketanah other than the Kidushin which the Ketanah herself accepts personally, what does the Gemara mean? The mother's acceptance of Kidushin for the Ketanah does *not* make a valid Kidushin and there should be no need for Mi'un! The Ramban explains that the Beraisa there means that she says, "I do not want the Kidushin that they (my mother or brother) *persuaded me* to make for myself."