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Yevamos, 12

1) THE LOGIC BEHIND A TZARAH'S EXEMPTION FROM YIBUM

QUESTION: Rav Asi states that the Tzarah of an Aylonis is exempt from Yibum. The Torah says, "ha'Bechor Asher Teled..." -- "The firstborn son *whom she bears* will perpetuate the name of the dead brother" (Devarim 25:6), which excludes doing Yibum with an Aylonis, since she cannot bear children. Since she is exempt from Yibum, she retains the Isur of "Eshes Ach," and as an Ervah to the surviving brothers, she exempts her Tzarah from Yibum.

Rava and Rebbi Yochanan conclude counter to Rav Asi's ruling, and they rule that the Tzarah of an Aylonis is *not* exempt from Yibum. The Gemara says that even if the Aylonis is prohibited to the brothers because of an additional Isur of Ervah, she still does not exempt her Tzarah from Yibum, because an Aylonis does not fall to Yibum at all. RASHI (DH Hilchesa) and TOSFOS (8a DH Trei) explain that despite the fact that the Tzarah must perform Yibum, since the Torah exempts the Aylonis from Yibum it is as if she and her Tzarah are married to an outsider, and not to a brother who died childless and whose wives fall to Yibum.

The case of an Aylonis seems similar to the case of "Eshes Achiv she'Lo Hayah ba'Olamo." In both cases, the Torah exempts the woman from Yibum ("Asher Teled" in the case of an Aylonis, and "Yeshvu... Yachdav" in the case of an "Eshes Achiv she'Lo Hayah ba'Olamo"). However, the Mishnah (2a, 17a) clearly states that the latter *does* exempt her Tzarah from Yibum, even though the Torah specifically exempts the woman herself! Why, then, does an Aylonis not exempt her Tzarah from Yibum, even though the verse exempts the Aylonis herself? What is the difference between them?

ANSWER: Actually, the exemptions of Aylonis and Eshes Achiv she'Lo Hayah ba'Olamo are identical. The difference between the case of Aylonis discussed in this Gemara and the case of Eshes Achiv she'Lo Hayah ba'Olamo discussed in the Mishnah is that the case discussed in the Gemara is one of "Nefilah *Rishonah*." That is to say, we are discussing a woman who presently (i.e. at the time her husband died) is an Aylonis, and whom the verse specifically exempts from Yibum for that reason. She does not fall to Yibum at all, and therefore her Tzaarah is not judged a Tzaras Ervah. (It is obvious that we are discussing a woman who *still is an Aylonis* when she is subject to Yibum, since "once an Aylonis, always an Aylonis.")

In the Mishnah, though, we are discussing the "Nefilah *Sheniyah*" of an Eshes Achiv she'Lo Hayah ba'Olamo. That is to say, we are discussing a woman who *in the past* fell to Yibum before a brother was born to her husband. At that time, another brother of her husband performed Yibum on her. Now, her second husband has died, and she is once again in a situation requiring Yibum. This time, she is *not* exempt from Yibum due to the specific exemption of "Eshes Achiv she'Lo Hayah ba'Olamo" since the two brothers (the second and the third brothers) *did* live at the same time. The reason she is exempt from Yibum is because she was Eshes Achiv she'Lo Hayah ba'Olamo the first time around, and therefore this time around she carries the Ervah prohibition of "Eshes Ach she'Lo bi'Mkom Mitzvah." Since the Torah did not specifically exempt her from Yibum this time, but rather she is exempt because she is an Ervah, therefore she can exempt her Tzarah from Yibum. (It is obvious that the Mishnah is discussing a woman who *once was* Eshes Achiv she'Lo Hayah ba'Olamo but is not Eshes Achiv she'Lo Hayah ba'Olamo this time, since the Mishnah discusses the status of her Tzarah, who is not Eshes Achiv she'Lo Hayah ba'Olamo. When a brother is born after his childless brother dies, *all* of the Yevamos are equally exempt from Yibum due to the exemption of Eshes Achiv she'Lo Hayah ba'Olamo.)

The reason for this distinction is as follows. The Halachah that a woman who is an Ervah to the surviving brother exempts her Tzarah from Yibum has a logical basis. The logic behind it is that Kidushin, the bond of marriage, cannot take effect with an Ervah (Kidushin 67b). The bond of Yibum, called Zikah, is similar to Kidushin in that it forms a connection between the Yevamah and the Yavam. If the Yevamah is an Ervah to the Yavam, then just like the bond of Kidushin cannot take effect between the two, so, too, the bond of Zikah also cannot take effect. The Mishnah (41a; see also TOSFOS on 16a, DH Bnei) says that for this reason, if a woman falls to Yibum and then one of the surviving brothers does Kidushin with her sister, making the Yevamah an "Achos Ishah" to him (the sister of his wife), it removes the Zikah to do Yibum between the Yevamah and that brother.

The Rishonim themselves make this point with regard to performing Yibum with a woman who one is prohibited to marry because of a Lav. The Gemara (9a) says that according to Rebbi Akiva, who holds that Kidushin does *not* take effect with a woman who is Asur to the man with a Lav, a woman who is Asur with a Lav does not perform Yibum or Chalitzah (and exempts her Tzarah from Yibum). TOSFOS there asks that there is no source in the Torah that tells us that Chayavei Lavim are exempt from Yibum. The Torah tells us only that Chayavei *Kares* are exempt from Yibum (through the Hekesh of Rebbi Yonah (8a) that compares all Chayavei Kares to an "Achos Ishah," or, according to Rava, it is learned through the principle of "Ein Aseh Docheh Lo Ta'aseh she'Yesh Bo Kares"). Therefore, a woman who is Asur only with a Lav should have to do Yibum even according to Rebbi Akiva!

The Rishonim (see RAMBAN, RASHBA, RITVA ibid.) answer that since we see that an Ervah which is prohibited by Kares is exempt from Yibum, we are able to understand that the reason is not simply because the Torah exempts specific Isurim from Yibum, but rather the reason is that in any situation where the Kidushin cannot take effect, Zikah also cannot take effect and thus there is no Mitzvah of Yibum (and the Isur of "Eshes Ach" remains). Therefore, according to Rebbi Akiva, who says that the Kidushin does not take effect for Chayavei Lavim, the verse that says that Chayavei Kares are exempt from Yibum also teaches that Chayavei Lavim are exempt as well, because the same logic applies -- i.e. since the Kidushin does not take effect, Zikah also does not take effect. (Although Rava asserts that no verse is used to teach that Chayavei Kares cannot perform Yibum, he only makes that statement according to the Rabanan. According to Rebbi Akiva, the verse will be used to show that one with whom Kidushin cannot be performed does not fall to Yibum, whether she is prohibited by an Isur Kares or only by a Lav. From this verse he will learn that Chayavei Lav cannot perform Yibum.)

Taking this one step further, we can explain how it is that an Ervah exempts not only herself, but also her Tzarah from Yibum. When a woman who is an Ervah to the brother falls to Yibum, since she is an Ervah to him she breaks, or disrupts, the Zikah. However, she not only breaks her own Zikah connection to him, but she breaks the entire Zikah to that brother, so that all of her Tzaros are also exempt from Yibum. This is because there cannot be "half" of a Zikah; once part of the Zikah (her own) is broken, the entire Zikah of the house to that brother is also broken.

This applies only when the Ervah was fit to do Yibum, but the fact that she was an Ervah prevented it and "broke" the Zikah. In the case of an Aylonis, her status of Eshes Achiv she'Lo Hayah ba'Olamo does not "break" or rupture any Zikah. There was no cause for her to have Zikah to the brothers to begin with, because the Torah specifically exempts her from the laws of Yibum. Since the fact that she is an Ervah does not break apart the Zikah, it does not break off the Tzarah's Zikah either.

12b

OPINIONS: Rav Bivi taught a Beraisa in which Rebbi Meir says that there are three women who may use a Moch during marital relations -- a Ketanah (minor), Me'uberes (a pregnant woman), and Menikah (a nursing mother). The Gemara explains that a Ketanah is any girl between the ages of eleven and twelve. Before the age of eleven, though, she does not use a Moch. The Chachamim argue and say that all women should have relations in the normal manner (without a Moch), and Hashem will protect them ("Shomer Pesa'im Hashem").

What is the Halachah of using a Moch in any situation *other* than these three situations mentioned in the Gemara (or even in these three situations according to the Chachamim)? Is it permitted or prohibited?

(a) RABEINU TAM (cited by TOSFOS) says that it is always permitted for a woman to insert a Moch *after* the act, because in such a manner there is no Isur involved. The man is not doing any Isur when the woman inserts a Moch after the act, because it is no different from living with a woman who cannot have children, such as an older woman, which is permitted as long as the act is done in the normal manner. The woman, also, is not doing any Isur by inserting the Moch, because the Zera which is being destroyed is not her Zera, and therefore she is permitted to destroy the Zera after the act. When Rebbi Meir says that three women may use a Moch, he means that they are *obligated* to do so, to protect themselves from danger. The Chachamim who argue say that it is not considered a severe enough danger to obligate them to use a Moch, and they are permitted not to use a Moch. But they may still use a Moch if they choose to do so.

(b) RASHI (here and in Kesuvos 39a) says that these three women are *permitted* (but not obligated) to use a Moch according to Rebbi Meir. This implies that the Chachamim maintain that it is *prohibited* for them to use a Moch. TOSFOS and other Rishonim here appear to understand that Rashi is discussing a Moch that a woman inserts after the act, like Rabeinu Tam explained. They understand that Rashi is saying that it is normally prohibited to use such a Moch, because Rashi holds that the woman is also prohibited to destroy Zera.

The Rishonim question Rashi's explanation that when Rebbi Meir says "three women use a Moch," he means that they are only *permitted*, but not obligated, to use a Moch. If that is true, then when Rebbi Meir says that a girl below the age of eleven has relations in the normal manner, he must mean that she is *prohibited* from using a Moch. But the Gemara says that a Ketanah below eleven cannot become pregnant -- why should it be prohibited for her to use a Moch? There is no destruction of Zera, since the Zera is not going to produce any children anyway!

Rashi in Nidah (45a) seems to answer this question by saying that the statement "three women use a Moch" means that "it is beneficial for them to use a Moch." Rashi is saying that the words "Meshamshos b'Moch" simply mean that it benefits them in some important way. We are left to understand by ourselves that because it benefits them, it is permitted to use the normally- prohibited Moch. The inference, regarding a Ketanah under the age of 11 as well as all other woman, is that it is not beneficial for them to use the Moch. We are left to understand by ourselves that because it does not benefit them, for some it is prohibited to use a Moch (all other women), and for others it is *not recommended* to use a Moch (a Ketanah less than 11 years). Thus, what Rashi writes in Nidah complements what he writes here. (RITVA)

REBBI AKIVA EIGER (Teshuvos #71, 72) concludes that this is the majority opinion among the Rishonim.

(c) The TOSFOS HA'ROSH and TOSFOS (in Kesuvos 39a) understand Rashi to be referring to a Moch that is inserted *before* having relations, like the simple reading of Rashi implies. For these three women, it is permitted, but for all others it is prohibited. How, though, can it be permitted to insert a Moch *before* the act? In such a situation, the *man* is causing his Zera to be destroyed, by releasing it into a Moch, which is an Isur d'Oraisa! What permits him to use a Moch? Instead of permitting him to perform the act with a Moch, he should be prohibited from performing the act with a Ketanah (or Me'uberes or Menikah) to begin with!

TOSFOS in Kesuvos explains that it is permitted to use a Moch because of the Mitzvah of Onah. That is, since he fulfills the Mitzvah of Onah, it is not considered destroying the Zera for naught even if she uses a Moch. The proof for this, says Tosfos, is that it is permitted to have relations with an older woman even though he knows that the Zera will be destroyed and will not be productive.

The other Rishonim (in (b) above) do not accept Tosfos' argument to compare using a Moch to having relations with an older woman. They learn, as Tosfos here says, that the reason relations with an older woman is permitted even though the Zera will not be productive is because the act is done in the normal manner. The Torah does not put limitations on the age of whom one may marry, implying that the normal manner of relations is never considered Hashchasas Zera, even if the Zera will not be productive because of natural reasons. In contrast, when inserting a Moch before the act, the act is not being done in the normal manner because the Zera is being prevented from reaching the woman, and therefore it is prohibited.

(The argument between this opinion and the previous one seems to hinge on the definition of "destruction of Zera" ("Hashchasas Zera"): According to this latter opinion, Hashchasas Zera is defined as when Zera is not used for *any* positive purpose (such as to create children, or to fulfill the Mitzvah of Onah). According to the other Rishonim, Hashchasas Zera is defined as when Zera is not used to produce *children*.)