QUESTION: Rebbi Oshiyah states (18b) that Rebbi Shimon permits Yibum in a
case of "Nolad v'Achar Kach Yibem:" when the first brother (Reuven) died,
and the second brother (Shimon) had not yet performed Yibum when a newborn
brother (Levi) was born. In such a case, asserts Rebbi Oshiya, Rebbi Shimon
permits Levi to do Yibum when Shimon dies, childless, after doing Yibum with
Reuven's wife. Rebbi Shimon's reasoning is that "Yesh Zikah" -- the bond of
Zikah is comparable to the bond of marriage in bonding the woman who falls
to Yibum. Since at the time the woman fell to Yibum she was considered
"bonded" to Shimon with a marriage-like bond, the birth of Levi at that time
is not considered a case of "Eshes Achiv she'Lo Hayah ba'Olamo."
The Gemara challenges Rebbi Oshiya's assertion that Rebbi Shimon holds "Yesh
Zikah" from a Mishnah (31b). The Mishnah presents a case of three brothers
who were married to three unrelated women. Reuven died, and Shimon did
"Ma'amar" with Reuven's wife, and then he died. Rebbi Shimon states that the
remaining brother may do Yibum with either widow (of Reuven or Shimon) and
do Chalitzah with the other one. The reason why, according to Rebbi Shimon,
the brother cannot do Yibum with both of them, nor may he do Yibum with only
one of them and exempt the other one entirely, is because Rebbi Shimon holds
"*Ein* Zikah," and he is in doubt whether "Ma'amar" is considered powerful
enough to give the Yevamah the status of Shimon's full-fledged wife.
Abaye answers this question by saying that Rebbi Shimon distinguishes
between a case of a woman who falls to Yibum to *two* brothers* and when she
falls to Yibum to only *one* brother. There *is* Zikah when she falls to
only one brother, but there cannot be Zikah when she falls to two brothers
(just like there cannot be a bond of marriage between one woman and two
men).
The Gemara challenges Abaye's answer that Rebbi Shimon distinguishes between
Zikah to two brothers and Zikah to one brother. A Beraisa quotes Rebbi
Shimon as saying that if Levi is born before Shimon does Yibum, then Levi is
exempt from Yibum and Chalitzah, and it is a case of "Eshes Achiv she'Lo
Hayah ba'Olamo." The Gemara says that according to the simple reading of the
Beraisa, the Beraisa is referring to a case where there was only one brother
besides Levi, and yet Levi is still considered to be "Achiv she'Lo Hayah
ba'Olamo" because there was no Zikah between Shimon and the Yevamah! We see
from there, asks the Gemara, that even when there is only one brother, Rebbi
Shimon says "Ein Zikah!"
The Gemara answers that the Beraisa is actually discussing a case where
there were *two* other brothers. Hence, in that case Rebbi Shimon says that
there is no Zikah, and that is why Levi is considered an "Achiv she'Lo Hayah
ba'Olamo."
Why does the Gemara ask this question from the Beraisa now, in response to
Abaye's statement that Rebbi Shimon differentiates between a case of one
surviving brother and two surviving brothers with regard to Zikah? The
Gemara should have cited this Beraisa at the beginning of the Sugya, as a
direct challenge to the view of Rebbi Oshiya! The Beraisa says clearly that
Rebbi Shimon agrees -- in a case where Levi was born before Shimon did
Yibum -- that "Ein Zikah" and Levi is prohibited to the Yevamah because of
"Eshes Achiv she'Lo Hayah ba'Olamo!" Before being told of the difference
between one brother and two brothers the Gemara could have presented an even
greater challenge to Rebbi Oshiya's statement from this Beraisa!
ANSWER: The RAMBAN writes that the introductory words that precede the
Gemara's question from the Beraisa, "u'Mi Shani Lei l'Rebbi Shimon" -- "Does
Rebbi Shimon really differentiate [between one brother and two brothers]?"
are not actually the basis for asking the question from the Beraisa. The
Gemara is really asking its question from the Beraisa directly on Rebbi
Oshiya's explanation of Rebbi Shimon. (That is, the Gemara is aking "will
differentiating between one and two Yavams really answer all questions on
Rebbi Oshiya?") The question of the Gemara is how Rebbi Oshiya can say that
Rebbi Shimon holds "Yesh Zikah" when the Beraisa clearly shows that Rebbi
Shimon holds "Ein Zikah."
If this is true, though, then why does the Gemara not ask from this Beraisa
first? This Beraisa is the clearest source that Rebbi Shimon holds "Ein
Zikah!" The RASHBA offers several answers:
(a) The reason why this Beraisa is the second question, and not the first
question posed to Rebbi Oshiya, is because the first question that it asks
is from a Mishnah (31b), whereas this question is from a Beraisa. The
general rule is that it is better to ask a question from a Mishnah, even if
it is only from an inference, than to ask a question from a Beraisa, even if
it is more explicit.
(b) The Rashba suggests further that the first question was stronger because
it shows that Rebbi Shimon is in doubt whether or not there is Zikah even
after doing "Ma'amar."
(c) Finally, the Rashba suggests that Rav Yosef -- who was the one who asked
the first question -- did not know this Beraisa. The Gemara (and not Rav
Yosef) cites the Beraisa now, and asks from it a question on the opinion of
Rebbi Oshiya.