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Yevamos, 20

1) YIBUM WITH CHAYAVEI LAVIM

QUESTION: The Mishnah says that a woman who is prohibited to her husband's brother because of a Chiyuv Lav (such as an Almanah to a Kohen Gadol, in a case where the Kohen Gadol's brother died and his widow fell to the Kohen Gadol for Yibum) does *not* do Yibum. The Gemara infers from the Mishnah that this applies to both an Almanah from Nisu'in (who was completely married to the Kohen Gadol's brother), as well as to an Almanah from Erusin (who was only betrothed to his brother). It is understandable that an Almanah from Nisu'in does not do Yibum, because the Torah prohibits a Kohen Gadol from marrying an Almanah with both a Mitzvas Aseh and a Lo Ta'aseh, and an Aseh (of Yibum) cannot be Docheh both an Aseh and a Lo Ta'aseh. However, asks the Gemara, why is an Almanah from Erusin exempt from Yibum? The Torah prohibits her to a Kohen Gadol only with a a Lo Ta'aseh, and thus the Aseh of Yibum should be Docheh the Lo Ta'aseh!

The Gemara initially answers that the verse of "Yevimto" (Devarim 25:7) teaches that Chayavei Lavim do not do Yibum. The Gemara then asks that perhaps that verse is referring to Chayavei Kerisus, who are exempt from Yibum, but Chayavei Lavim are not exempt from Yibum. The Gemara answers that a different phrase teaches us that Chayavei Kerisus are exempt from Yibum and Chalitzah -- "If the man does not want to marry his Yevamah..." (Devarim 25:7).

The Gemara then asks, "Mah Ra'is?" -- perhaps Chayavei Lavim do neither Yibum nor Chalitzah, but Chayavei Kerisus do perform Chalitzah; how do we know which phrase in the verse refers to Chayavei Lavim and which phrase refers to Chayavei Kerisus? The Gemara answers that logically, the one for which normal Kidushin takes effect (Chayavei Lavim) needs Chalitzah, while the one for which normal Kidushin does not take effect (Chayavei Kerisus) does not need Chalitzah.

RASHI explains how the phrase "Yevimto" teaches that Chayavei Lavim are exempt from Yibum but not from Chalitzah. He says that in the verse, ""If the man does not want to marry his Yevamah (Yevimto), then his Yevamah (Yevimto) shall go up to the gate to the elders...," the Torah did not need to write "Yevimto" a second time; rather, it should have said, "If the man does not want to marry his Yevamah (Yevimto), then *she* shall go up to the gate..." and it would be obvious that it is referring to the Yevamah! It must be that the extra phrase of "Yevimto" is teaching that someone is obligated to do Chalitzah even when that person is unable to do Yibum. Since the verse says, "If he does not want *to take* (Lakachas)," it implies that Chalitzah is done only where it is possible to do Yibum ("to take" her). "Yevimto" shows that even in a case where there is no "Lakachas," there is still Chalitzah. If the verse had left out the second "Yevimto," we would have thought that Chayavei Lavim are exempt not only from Yibum, but also from Chalitzah.

How can Rashi say that without the phrase of "Yevimto," we would have thought that Chayavei Lavim are exempt from both Yibum and Chalitzah? The Gemara just finished saying that Chayavei Lavim *should* have Yibum, because the Aseh of Yibum should be Docheh the Lo Ta'aseh of the Chiyuv Lav, and the Gemara now searches for a verse that teaches that there is *no* Yibum. Rashi, though, says that without any verse, we would have assumed that Chayavei Lavim have *no* Yibum and the only reason why we need a verse is to teach that they *do* have Chalitzah! What does Rashi mean? (RISHONIM)

ANSWERS:

(a) The RASHBA, TOSFOS HA'ROSH, and RITVA answer that Rashi's intention is as follows. The Gemara's source that Chayavei Lavim are exempt from Yibum is *not* from the extra word "Yevimto" at all, even though the Gemara mentions it. Rather, the source is from the word "Lakachas" in the same verse. The verse says that if he does not want to take her ("Lakachas") *then* she has Chalitzah. From that word, we infer that Yibum can be done only with a woman whom he could take as a normal wife (and not just through Yibum), such as when he does Yibum with her, divorces her, and then remarries her in the normal manner of Kidushin and Nisu'in (the Gemara earlier on 8b derived from "u'Lekachah" that if he divorces her after the Yibum he may remarry her, and the Gemara here, according to this explanation of Rashi, is saying that this is a criterion for Yibum: there is only Yibum if the man would be permitted to remarry her after doing Yibum and divorcing her). The word "Yevimto" which the Gemara cites is adding a second point: now that we know that there is no Yibum from the word "Lakachas" (the Limud which is not articulated by the Gemara), we learn from "Yevimto" that there nevertheless *is* an obligation to do Chalitzah.

Thus, the Gemara is leaving out part of the Limud ("Lakachas") which it should have cited. The Gemara knew, though, that Rava would ask a question from a Beraisa discussing Chalitzah, and therefore it cited the Limud of "Yevimto" that teaches that Chayavei Lavim do Chalitzah.

Why did Rashi give this explanation, and not the simple explanation that "Yevimto" excludes Chayavei Lavim from Yibum (and not that it includes them in Chalitzah), as Rashi himself implies later (84a, DH v'Ha)?

The reason is because Rashi wants to answer the perplexing questions that TOSFOS raises on our Sugya (DH Iy Hachi and DH Mistavra). Tosfos asks how could the Gemara suggest ("Mah Ra'is") that the word "Yevimto" should teach that Chayavei Kerisus have Chalitzah but not Yibum, and the phrase of "Lakachas" should teach that Chayavei Lavim have neither Chalitzah nor Yibum? If "Yevimto" is not teaching anything about Chayavei Lavim, then there is no verse to teach that they are exempt from Yibum, and thus perhaps they have both Yibum and Chalitzah (because of the principle that whatever has Yibum, also has Chalitzah)!

According to the way Rashi learns the Gemara, Tosfos' question does not begin. Chayavei Lavim do not have Yibum because of a different Limud -- "Lakachas." Hence, even if we do not know from "Yevimto" that Chayavei Lavim do not do Yibum, we have another source that teaches that they do not do Yibum, and that is the verse of "Lakachas." (The Rishonim agree that this is the simplest explanation in Rashi and in the Sugya.)

(b) Rashi's words, however, do not seem to imply this interpretation suggested by the Rishonim. According to the Rishonim, the word "Lakachas" teaches that when there is no *normal* Kidushin when she is *not* a Yevamah, then the woman is exempt from Yibum as well. However, Rashi (end of DH Yesh Licha) seems to say that "Lakachas" means that she is unable to do *Yibum*, and not that she is unable to do a normal Kidushin! Rashi says that the reason Chayavei Lavim do not fit into the category of "Lakachas" is "because they do not have Yibum," and he does not say that it is because they can not do a normal Kidushin. (See also Rav Avraham Min ha'Har, referred to in Insights #3 later on this Daf. Perhaps the text of Rashi which the Rishonim had did not read, "[Chayavei Lavim do not fit the category of 'Lakachas'] *because* they do not have Yibum," but rather, "[Chayavei Lavim do not fit the category of 'Lakachas'] *and* they do not have Yibum.")

Because of this, we may suggest an alternate interpretation of Rashi. Perhaps Rashi learns that when the Gemara asks that Chayavei Lavim *should* have Yibum because the Aseh of Yibum should be Docheh the Lo Ta'aseh, the Gemara was not certain that the rule of "Aseh Docheh Lo Ta'aseh" applies here. After all, here it is possible to do Chalitzah instead of Yibum and thereby avoid transgressing the Lo Ta'aseh, like Rashi himself writes earlier (6a, DH Ela), and like Rava suggests later (end of 20b). The Gemara was not asking that the Aseh should certainly be Docheh the Lo Ta'aseh in the case of an Almanah doing Yibum with a Kohen Gadol, but rather the Gemara was asking that regardless of whether the rule applies here, there will be a problem. If the Aseh is not Docheh the Lo Ta'aseh here (because Chalitzah can be done instead) and that is why there is no Yibum, then why is there Chalitzah (after all, the Gemara on 3a said that wherever there is no Yibum, there is also no Chalitzah -- the Gemara could have asked this question on Chayavei Lav v'Aseh as well)? On the other hand, if the Aseh is Docheh the Lo Ta'aseh, then there should be *both* Yibum and Chalitzah!

The Gemara answers that perhaps we do not apply "Aseh Docheh Lo Ta'aseh," and the reason there is Chalitzah is because of the verse of "Yevimto." To this the Gemara asks "Mah Ra'is" -- perhaps Chayavei Lavim have neither Chalitzah nor Yibum (since "Aseh Docheh Lo Ta'aseh" does not apply), and "Yevimto" is teaching that Chayavei *Kerisus* have Chalitzah.

The Gemara could have answered just as well that in truth, the Aseh of Yibum *is* Docheh the Lo Ta'aseh, and the word "Yevimto" not only teaches that Chayavei Lavim do Chalitzah, but that they do not do Yibum (as Tosfos explains). However, from the Gemara's progression of questions, we see that the Gemara chooses to say that there is no Aseh Docheh Lo Ta'aseh here and thus we do not need a verse to teach that there is no Yibum.

However, according to this explanation, why does Rashi (DH Tafsi Bah Kidushin) say with regard to Chayavei Lavim that "Kerinan Bei 'Lakachas' b'Di'eved" -- that Kidushin takes effect b'Di'eved if one marries a woman who is Asur to him with a Lav? If "Lakachas" means to take her with Yibum, then even b'Di'eved, Yibum should not work if the Aseh is not Docheh the Lo Ta'aseh (because the Gemara says (20b) that when Yibum is prohibited, then even b'Di'eved Yibum does not work)! According to the other Rishonim, Rashi means "Kerinan Bei Lakachas" with regard to *normal Kidushin*, and not for Yibum, and thus Rashi's words make sense. According to our explanation, though, what does Rashi mean? For an answer to this, and an explanation for Rashi on Daf 84a who seems to take a different approach to Chayavei Lavim, see Insight 4 below. (M. Kornfeld)

20b

OPINIONS: The Gemara differentiates between Chayavei Lavim and Chayavei Kerisus with regard to the obligation to do Chalitzah, which exists for Chayavei Lavim but not for Chayavei Kerisus. The Gemara says that Chayavei Lavim have Chalitzah because Kidushin takes effect with such women, while Chayavei Kerisus do not have Chalitzah because Kidushin does not take effect with such women.

In what way does the Gemara relate the fact that Kidushin with Chayavei Lavim takes effect with the fact that Chayavei Lavim have Chalitzah? Is it merely an *indication* ("Siman") that Chayavei Lavim have Chalitzah, or is it a *causative* factor ("Sibah") which is the reason *why* Chayavei Lavim have Chalitzah? If it is a "Siman," then the Gemara is not saying that Chayavei Lavim have Chalitzah *because* their Kidushin takes effect, but rather that since we see that Chayavei Lavim are more lenient with regard to the Ishus of Kidushin, then it is logical to say that the verse that gives an obligation to do Chalitzah is referring to Chayavei Lavim.

On the other hand, if it is a "Sibah," the Gemara is saying that since Kidushin does not take effect with Chayavei Kerisus, then Zikah also cannot take effect with such women, and if there is no Zikah there is no need for Chalitzah. Since Kidushin does take effect with Chayavei Lavim, then Zikah also takes effect and thus there is a need to do Chalitzah.

This seems to be a Machlokes Rishonim, and it is relevant throughout the Masechta and has many implications.

(a) RASHI and TOSFOS seem to learn that it is only a "Siman." The fact that there is no Kidushin for Chayavei Kerisus does not automatically mean that there is no Zikah as well. Rather, the fact that there is no Kidushin is just explaining why this particular verse is less likely to be referring to Chayavei Kerisus than to Chayavei Lavim. It would be possible, though, to find a case of a Chiyuv Kares that does have Zikah, and to find a case of a Chiyuv Lav that does not have Zikah. For example, TOSFOS on Daf 2a (DH va'Achos) learns that a Nidah should have neither Yibum or Chalitzah, even though she does have Kidushin, and on Daf 11b he considers Sotah and Machzir Gerushaso to be full-fledged "Arayos" (according to at least one stage of the Gemara's discussion) even though they have Kidushin (see Insights to 11:2). TOSFOS 16a (DH Bnei Tzaros) and 18b (DH Shomeres), on the other hand, mentions situations in which Chayavei Kerisus *do* have Zikah. Similarly, on Daf 9a (TOSFOS DH v'Harei) he suggests that Chayavei Lavin should have Zikah even according to Rebbi Akiva, who maintains that Kidushin cannot be effected with Chayavei Lavin.

In this respect, Tosfos may be following the train of thought that is apparent from his words elsewhere. TOSFOS 3b (DH Lo Ta'aseh) writes that the Mitzvah of Yibum is *Docheh* the Isur of Eshes Ach (and not that Eshes Ach is *Hutrah* in a situation of Yibum). We explained that to mean that the Isur of Eshes Ach is removed only at the moment of Yibum, and not at the moment that the brother dies childless (see Insights to Daf 7:1, and Rashi 52a DH Nasan). According to this view, *every* Yevamah is an Isur Kares (Eshes Ach), yet Zikah can take effect upon her!

(b) The RASHBA (end of 20b), RAMBAN (here) and other Rishonim clearly explain in our Sugya that *because* Kidushin does not take effect with Chayavei Kerisus, there is no Zikah and thus no need for Chalitzah. The RASHBA and others indeed argue with the above contentions of Tosfos by applying this same rule; when there is no Kidushin there can be no Zikah, and when there is Kidushin there should be Zikah. The Rashba and others argue with Tosfos about the status of a Yevamah before Yibum as well. They learn that the Isur of Eshes Ach is removed at the moment of the brother's death, and not through the act of Yibum (see Insights to 7:1) (M. Kornfeld)

QUESTION: The Gemara takes it for granted that even if there is an Lo Ta'aseh that prevents Yibum from being done, then even b'Di'eved -- if the brother did Yibum with the Yevamah who is Asur to him -- the Yibum does not work and she still needs Chalitzah.

Why does Yibum not work b'Di'eved? After all, when one marries a woman who is Asur to him with a Lo Ta'aseh, the Kidushin takes effect. So why should Yibum not take effect b'Di'eved? Even if we say that the Torah does not include Chayavei Lavim in the obligation of Yibum (just like it excludes an Aylonis and Eshes Achiv she'Lo Hayah b'Olamo), and since the Torah never gave him an option of Yibum it is impossible for him to perform Yibum, nevertheless at least Kidushin (Kidushei Bi'ah) should take effect if the brother does Yibum with her (and thus she should need a Get, and not only Chalitzah)! Even though, in the cases of Aylonis and Eshes Achiv she'Lo Hayah b'Olamo, there is certainly no Kidushin, that is because those women are prohibited with the Isur of "Eshes Ach." But in the case of Chayavei Lavim, the Torah says that there *is* Chalitzah, and wherever there is Chalitzah we know that the Isur of "Eshes Ach" is removed (as the Gemara said 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!

ANSWERS: The SHA'AR HA'MELECH (6:11) and AVNEI MILU'IM (Even ha'Ezer 174) discuss this at length. It seems that there are two primary approaches in the Rishonim as to why Kidushin does not take effect when a man does Yibum with a woman who is Asur to him with a Lo Ta'aseh. (These two approaches depend on the two approaches that we mentioned in the previous Insight and in Insights to 7:1, 10:1).

(a) RASHI (52a, DH Nasan Lah) writes that in a normal case of Yibum, even during the Zikah, the Yevamah is Asur to the brother with an Isur of "Eshes Ach." The Torah gives him a special Heter to do Yibum, and at that moment the Mitzvah of Yibum is Docheh the Isur of "Eshes Ach." Until he does Yibum, though, the Isur is still there. Therefore, says Rashi, one cannot be Mekadesh a Yevamah, because she is Asur to him as "Eshes Ach," and the Kidushin cannot take effect.

With regard to Chayavei Lavim, the Torah says that a person 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 (because the Torah says not to). Therefore, the Isur of "Eshes Ach" is not pushed aside for Yibum, and the woman remains an "Eshes Ach." As a consequence, he cannot marry her even with normal Kidushin, because she is Asur to him with an Isur Kares of "Eshes Ach." In other words, the Lav causes the Isur Kares of "Eshes Ach" not to be removed, and thus Kidushin cannot take effect with her. (When the Gemara (10b) says that the Isur of "Eshes Ach" is removed by Chalitzah, it is only at the *moment that Chalitzah is done* but not prior to it.)

(b) The RASHBA (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." As such, it cannot be the Isur of "Eshes Ach" that is preventing the Kidushin from taking place. However, we see that if the brother is Mekadesh the Yevamah with Kesef or a Shtar, it does not effect Kidushin d'Oraisa, but it is only a Kidushin d'Rabanan called "Ma'amar." A Beraisa cited in Kidushin (14a) explains that the verse "Yevamah Yavo Aleha" -- "Her Yavam shall come upon her" Devarim 25:5), teaches that Kidushin through Kesef and Shtar -- which otherwise effect a normal Kidushin -- cannot be effected with a Yevamah. The marriage of Yibum can be done only by being Mekadesh her in one way -- with Bi'ah, and not in the two other normal ways (Kesef and Shtar). That is why Kidushin cannot take effect with Chayavei Lavim; it can never take effect in a situation of Yibum.

(MAHARSHA (20b), however, seems to have learned that Kidushin can take effect with a Yevamah. Similarly, RAV AVRAHAM MIN HA'HAR (20a) seems to learn that Bi'ah with a Yevamah who is Chayavei Lavim will effect Kidushin although it will not break the Zikah. The woman will be bonded to her Yavam through both Kidushin and Zikah, and will need both Chalitzah and a Get (mid'Oraisa) to break her bond with the Yavam. See Shi'urei Rav Nachum [Pertzowitz], who discusses the opinion of Rav Avraham Min ha'Har at length.)

QUESTION: The Gemara initially states (20a) that the reason Chayavei Lavim are exempt from Yibum but are obligated to do Chalitzah is based on a verse ("Yevimto"), thus implying that they are prohibited mid'Oraisa from doing Yibum. Rava proves the Gemara's initial assumption to be incorrect; it cannot be that the Torah excludes Chayavei Lavim from Yibum, because if so, then if one transgressed and did Yibum with the woman who is Asur to him with a Lav, the Yibum should *not* be effective and he should not be Koneh her. However, the Beraisa says that b'Di'eved one *is* Koneh the women if one transgressed and did Yibum! Rava therefore concludes that the Isur of doing Yibum with Chayavei Lavim is only mid'Rabanan, and it is because of the Gezeirah of "Bi'ah Rishonah" due to "Bi'ah Sheniyah" (since doing Bi'ah Sheniyah is certainly Asur, the Chachamim also prohibited Bi'ah Rishonah).

Then, Rava rescinds his view and says that it cannot be that mid'Oraisa there is a Chiyuv of Yibum, for the Aseh is Docheh the Lo Ta'aseh. He says that the principle of "Aseh Docheh Lo Ta'aseh" does not apply here, because it is possible to fulfill the Aseh without transgressing the Lo Ta'aseh -- by doing Chalitzah! When it is possible to avoid transgressing the Lo Ta'aseh, then the Mitzvas Aseh is not Docheh the Lo Ta'aseh. Rather, it must be that mid'Oraisa there is no Chiyuv of Yibum with Chayavei Lavim.

The Gemara proceeds to refute Rava's new opinion and to prove that his first explanation was correct, that mid'Oraisa there *is* Yibum for Chayavei Lavim, and it is only prohibited mid'Rabanan. The Gemara quotes the Beraisa which says that if the brother transgressed and did Yibum with the woman, then b'Di'eved he is Koneh her and the Yibum is effective. If the Yibum is effective b'Di'eved, then it must be that mid'Oraisa there *is* Yibum (because of "Aseh Docheh Lo Ta'aseh"), and the Isur is only mid'Rabanan.

The problem is that Rava himself used this Beraisa to refute the other opinion (that even mid'Oraisa there is no Yibum for Chayavei Lavim)! How could he now -- after refuting the other opinion from this Beraisa -- say something that is in opposition to that Beraisa? (TOSFOS DH Meisivei)

ANSWERS:

(a) The RASHBA points out that when the Gemara says that Rava changed his mind, it says "Rava said, and some say Rav Ashi said...." The Gemara means that we are not sure who it was that said that there is no Yibum for Chayavei Lavim even mid'Oraisa because the Aseh is not Docheh the Lo Ta'aseh in this case. If it was Rava who had quoted the Beraisa earlier in order to refute the first opinion that there is no Yibum mid'Oraisa, then he could not be the one who says now that the Aseh is not Docheh the Lo Ta'aseh, so it must be Rav Ashi. And if it is Rava who now says that the Aseh is not Docheh the Lo Ta'aseh, then the Gemara until now, when it quoted Rava, must really have been quoting Rav Ashi (even though the Gemara does not mention Rav Ashi earlier like it does here). The Gemara is saying that it was not the same person who said both statements.

(b) The PNEI YEHOSHUA (in Kuntrus Acharon, on Yevamos) suggests a simple answer for why Rava thought that the Aseh is not Docheh the Lo Ta'aseh here, 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 that says that b'Di'eved, the Yibum is effective.

Originally, the Gemara maintained that the Aseh is not Docheh the Lo Ta'aseh because the verse says "Yevimto," teaching 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, because the Torah never gave a Mitzvah of Yibum to Chayavei Lavim. Therefore, if the brother does Yibum, it is ineffective (as we explained at the beginning of the previous Insight).

However, according to Rava (after he changed his mind), the verse does not relate to Chayavei Lavim and Yibum. Rather, we can understand by ourselves that Chayavei Lavim do not have Yibum, and the Aseh is not Docheh the Lo Ta'aseh, since it is possible to fulfill the Aseh and to observe the Lo Ta'aseh by doing Chalitzah instead of Yibum. Since the verse does not say that Yibum is not done by Chayavei Lavim, perhaps the Mitzvah of Yibum *does* apply to Chayavei Lavim, but there is just an Isur Lav preventing one from fulfilling the Mitzvah l'Chatchilah. (The Halachos of Yibum would apply to him, but there is an Isur Lav preventing Yibum from being done.) If so, b'Di'eved, if he transgresses the Lav and does do Yibum, then the Kinyan of Yibum can take effect, because the Parashah of Yibum never excluded Chayavei Lavim.

The Gemara, on the other hand, does not accept this argument. It says that even according to Rava's reasoning, if Yibum was done, it should *not* be effective b'Di'eved, because the Isur Lav that prevents one from doing Yibum l'Chatchilah should also prevent the Yibum from taking effect b'Di'eved. The Gemara considers it logical to assume that the Torah never meant to include Chayavei Lavim in the Parashah of Yibum if one cannot do it due to the Lo Ta'aseh. (The Pnei Yehoshua, ibid., suggests another reason why the Gemara rejects Rava's view on this matter.)

Rava's opinion, though, is now clear -- he maintains that the Beraisa that says that Yibum works b'Di'eved does not contradict his statement that Yibum is Asur mid'Oraisa for Chayavei Lavim.

The approach of the Pnei Yehoshua might answer a problem with the words of Rashi in a number of other places. REBBI AKIVA EIGER (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 *mid'Oraisa* Chayavei Lavim may not do Yibum, like the first opinion of the Gemara says, and like Rava says in his second opinion. We may add that this view of Rashi is implicit in a number of other places as well (9a, DH v'Harei Isur Mitzvah, and in the Mishnah on 20a, DH Gerushah).

How could Rashi write this? First, our Gemara concludes clearly that the Isur for Chayavei Lavim to do Yibum is only mid'Rabanan, and the Gemara reiterates this in Sanhedrin (19a)! Second, the Gemara shows that it is not possible to say that Yibum is prohibited by the Torah, because the Beraisa states that b'Di'eved, the Yibum works! Why does Rashi, in those places, stay with the Havah Amina of our Gemara?

Rashi might have learned that although our Gemara (and the Gemara in Sanhedrin) says that it is only a Gezeirah d'Rabanan that Chayavei Lavim do not do Yibum, however there are other sources that show that Chayavei Lavim do not have Yibum even mid'Oraisa. Therefore, Rashi concluded that the Sugyos are arguing this point. The Sugyos that say that Chayavei Lavim are Asur even mid'Oraisa are following Rava's *conclusion*, that the Aseh is not Docheh the Lo Ta'aseh (since it is possible to do Chalitzah instead), and the Beraisa does not contradict that opinion because it is still possible that Yibum works b'Di'eved, as the Pnei Yehoshua explains. (According to what we have explained earlier, Insight #1 above, this is also the approach of the Gemara at the end of 20a. Rava is not rejecting that approach by citing the Beraisa that says "Im Ba'alu Kanu.")

What are Rashi's sources that support Rava's conclusion (that there is no Yibum with Chayavei Lav mid'Oraisa)? There are several possible sources.

1. First, Rashi (DH Tiyuvta) writes that if we say that Yibum is Asur for Chayavei Lavim only mid'Rabanan, then we will be arguing with Reish Lakish, who says that when one can fulfill both the Aseh and the Lo Ta'aseh, then the Aseh is not Docheh the Lo Ta'aseh, and thus he maintains that mid'Oraisa there is no Yibum for Chayavei Lavim. The Acharonim ask why Rashi says this if, on the next Amud, the Gemara reconciles the view that Yibum is permitted mid'Oraisa (for the Aseh *is* Docheh the Lo Ta'aseh) with Reish Lakish and says that the Chalitzah is not a real fulfillment of the primary Mitzvah, and thus it cannot be said to take the place of the Mitzvah of Yibum. It seems that Rashi did not have the Gemara later in his text, for indeed, he says that Reish Lakish's view is refuted by the Gemara here. Rashi is learning that the Gemara does not reconcile the opinion of Reish Lakish, and Reish Lakish holds that mid'Oraisa, Chayavei Lavim do not have Yibum.

If the conclusion of our Gemara is correct -- that the Isur of Yibum for Chayavei Lavim is only mid'Rabanan, then it would be expected that the Gemara should reject the view of Reish Lakish and not quote him elsewhere. However, we find his statement quoted in many places. We may conclude, then, that the Gemara elsewhere does support Reish Lakish's view and argues with our Gemara's conclusion that Yibum is Asur only mid'Rabanan for Chayavei Lavim.

2. In addition, there are a number of proofs from Sugyos in Yevamos that the Isur of Yibum for Chayavei Lavim is mid'Oraisa. First, the Gemara (9a) says that according to Rebbi Akiva who holds 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 like an Ervah does. TOSFOS (9a, DH v'Harei) asks that until now, the Gemara has said that even an Ervah itself should do Yibum if an Aseh is Docheh a Lo Ta'aseh that has Kares. If so, Chayavei Lavim -- which do not have Kares -- should certainly do Yibum because of "Aseh Docheh Lo Ta'aseh," regardless of whether they have a status of Ervah according to Rebbi Akiva! (See Insights above #2, Insights to 12:1.)

Rashi may have learned from this that according to the Gemara's conclusion, the Aseh of Yibum is not Docheh any Lo Ta'aseh, and therefore Chayavei Lavim are treated like a normal Ervah.

3. Also, the Gemara (6a) mentions that even if an Aseh is Docheh a Lo Ta'aseh that has Kares, the Aseh of Yibum will *not* be Docheh such a Lo Ta'aseh, because Yibum differs from other Mitzvos in that it can be fulfilled through Chalitzah (that is how Rashi understands the words "Hechsher Mitzvah" there; see Insights to 6:1). Tosfos there asks that this is not true; the Gemara here (20b-21a) says that Chalitzah is *not* considered an equal alternative to the Mitzvah of Yibum; the main Mitzvah is Yibum as our Gemara concludes (21a), and yet we still say that the Aseh of Yibum is Docheh a Lo Ta'aseh even though it is possible to do Chalitzah.

Rashi, though, learned that "Hechsher Mitzvah" means that if one can do Chalitzah, than the Aseh of Yibum is *not* Docheh a Lo Ta'aseh. According to Rashi, the Gemara there (6a) is accepting the argument of Rava, that we do treat Chalitzah as an equal alternative to Yibum, and thus Yibum is not comparable to a normal case of "Aseh Docheh Lo Ta'aseh." This, then is another source saying that Yibum is not a case of "Aseh Docheh Lo Ta'aseh."

4. Finally, the Gemara (11b) mentions a Kal va'Chomer: if, in a case where a man divorces a woman and she marries someone else, he is prohibited to remarry her after her second husband dies or divorces her, then certainly that man's brother should be prohibited to her, and perhaps even to her Tzarah. This Kal va'Chomer is puzzling. A man is only Asur to remarry his wife with an Isur Lav (of "Machzir Gerushaso"). If so, how can the Kal v'Chomer teach that the Yavam should not be able to do Yibum? Even if she is Asur with an Isur Lav to the Yavam, we should say that "Aseh Docheh Lo Ta'aseh" and he should still do Yibum (and certainly the Tzarah should do Yibum, since the Lav does not affect her)! (RASHASH)

According to Rashi, though, who says that the Torah prohibits Chayavei Lavim from doing Yibum, the Gemara's logic is clear: if she is Asur to her husband with a Lav, then she is also Asur to her Yavam with the power of a Lav, and thus there will be no Yibum. (Since this Lav has an element of "Ervah," there exists the possibility that even her Tzarah will not have Yibum.)

Based on these sources, Rashi might have concluded that most Sugyos in Shas reject our Gemara's conclusion and accept instead Rava's argument that the Aseh of Yibum is not Docheh a Lo Ta'aseh, and nonetheless if Yibum is done, b'Di'eved it works (because the Torah does not explicitly exclude Chayavei Lavim from Yibum).

(On a deeper level, even if the Torah excludes Chayavei Lav from Yibum with the verse "Yevimto," we may assume that the *reason* they are excluded is because Yibum cannot be Docheh a Lo Ta'aseh since the Aseh can be fulfilled through Chalitzah. If not, we would learn from here that an Aseh is *never* Docheh a Lo Ta'aseh -- as the Rashba asks, based on the Gemara earlier, 6a. Rather, the Torah excludes Chayavei Lav from Yibum in order to teach that if one can fulfill the Aseh without transgressing the Lav, then the Aseh is not Docheh the Lav. Hence, the verse does not exclude Chayavei Lav from the Parsha of Yibum entirely, but rather it teaches that an Aseh which can be fulfilled without transgressing the Lo Ta'aseh cannot be Docheh a Lo Ta'aseh. If so, b'Di'eved when one performs Yibum with Chayavei Lav the Yibum will take effect, as the Pnei Yehoshua suggested according to Rava's conclusion. If so, we may explain the Sugya as follows. Rava initially thought that the verse excludes Chayavei Lav from the entire Parsha of Yibum. Later he changed his mind and suggested that the verse only teaches that an Aseh which can be fulfilled without transgressing the Lav is not Docheh the Lav.)

This also explains the words of Rashi (end of 20a) where he writes that the reason why there is Chalitzah for Chayavei Lavim is because "Kerinan Bei 'la'Kachas'" -- and since b'Di'eved "Lakachas" applies to Chayavei Lavim, therefore there is Chalitzah. How could Rashi write that one can do Yibum with Chayavei Lavim b'Di'eved if the Gemara throughout the next Amud says that when Yibum is Asur mid'Oraisa with Chayavei Lavim, then even b'Di'eved it does not work (See end of Insight #1 above)?

The answer is that Rashi there is following the opinion of Rava at the end of the Sugya, that the Aseh of Yibum is not Docheh a Lo Ta'aseh since it is possible to do Chalitzah instead (as we explained above, Insight #1:b). That is why Rashi can say that, nonetheless, b'Di'eved if one did Yibum, it is effective. (M. Kornfeld)

[NOTE: Rashi's words in Sanhadrin 53a, cited above, are especially confusing. H e begins by saying that Chayavei Lav have no Yibum mid'Oraisa, but in the very next Dibur he explains that they have Yibum mid'Oraisa, but the Rabanan prohibited their Yibum because of Bi'ah Sheniyah -- see MAHARSHA there who suggests a somewhat forced answer to reconcile this. However, it seems clear that the two Diburim reflect two *distinct* approaches to the Sugya, and that Rashi at one point *changed* his explanation and added the second approach. In our texts, both explanations were included in Rashi, even though Rashi had rejected one of the two. A good example of such a mis-text can be found later in Yevamos, Rashi 23b DH Mai Shena and DH Choltzos; see TOSFOS and Rishonim there. See also our introduction to Maseches Eruvin, section dealing with Rashi.]