Ask A Question about the Daf

Previous daf

Yevamos, 24

1) PERMITTING AN "ACHOS ZEKUKASO"

QUESTION: The Gemara discusses the case of the Mishnah later (26a) of four brothers, two of whom married sisters and then died childless. The two surviving brothers must do Chalitzah with the two sisters and they may not do Yibum with them. Neither brother may do Yibum with the first sister, because she herself is "Achos Zekukaso," the sister of a woman with whom he needs to do Yibum. After the first brother does Chalitzah with the first sister, though, why may the second brother not do Yibum with the second sister? Since the first sister has already done Chalitzah and there is no longer any Zikah with that sister, the second sister is no longer an "Achos Zekukaso" to the second brother!

RASHI explains that the reason the second sister may not do Yibum is because of the rule that once she had become Asur for one moment, she remains Asur forever ("Ne'esrah"). What made her Asur for one moment? Rashi says that there are two possible reasons why she was Asur for one moment. First, perhaps the Mishnah holds "Yesh Zikah," and thus before the first brother did Chalitzah with the first sister, the second sister was Asur to the second brother (as well as the first) as "Achos Zekukaso" due to the Zikah that the brother had with her sister. Second, perhaps the Mishnah holds that she was Asur because of the Isur to forfeit the Mitzvah of Yibum ("Isur Bitul Mitzvas Yevamim"), for when both sisters fell to Yibum, neither brother could do Yibum because he might thereby forfeit the Mitzvah of Yibum of the other sister, in case the other brother dies before doing Yibum. Thus, even after doing Chalitzah with one of the sisters, the other sister remains Asur to the second brother because she reverts back to the Isur of "Eshes Ach" since she was Asur for one moment.

In the case of our Mishnah (23b), though, when only one of the two sisters who fell to Yibum is the real Yevamah and the other was not married to the brother at all and does not need Yibum, Rashi says that once one brother does Chalitzah with one of the sisters, the second brother may do Yibum with the second sister, because she was not Asur in the first place. If she is not the real Yevamah, she cannot become Asur (since she has no connection at all to any of the brothers), and if she is the real Yevamah, then she was permitted to the brothers all along (we just did not know it)!

From Rashi it appears that in the case of four brothers (26a), even after one brother does Chalitzah, his Chalitzah does *not* retroactively remove her Zikah to the other brothers. If the Chalitzah would remove the Zikah retroactively, then the second brother was not really Asur to the second sister in the first place, since, retroactively, she was not an "Achos Zekukaso" (when the first sister did Chalitzah with the first brother, that shows that was only Zekukah to the first brother and not to the second brother, and thus her sister was never the sister of someone who was Zekukah to the second brother!). Rather, the Zikah is not removed until the moment that one brother does Chalitzah; until that time, there *was* a Zikah to all of the brothers, and it does not disappear retroactively.

This is also evident from Rashi at the end of the Mishnah, who writes that in a case of "Kadmu v'Kansu," where the two brothers of the deceased man both did Yibum to the two sisters (when they were not permitted to do so because of the Safek Isur involved), b'Di'eved they are permitted to remain married. This is because after the first brother did Yibum, one of the two women fulfilled the Mitzvah of Yibum, and that removed her Zikah to the other brother, and therefore that other brother has no Isur of "Achos Zekukaso" to the second woman. Rashi adds "Isura d'Avad Avad" -- even though he did an Isur (of marrying "Achos Zekukaso"), it is already done and finished. If the Zikah is removed retroactively, though, it should not be called an Isur at all! She (the first sister who did Yibum with the first brother) was never Zekukah to the second brother, and thus her sister was completely Mutar to him!

How can these words of Rashi be reconciled with the words of Rashi earlier in the Mishnah (DH Ein Motzi'in) who writes that when two brothers both do Yibum with two sisters, when the second one does Yibum he removes the Zikah and the Isur of "Achos Zekukaso" from the first brother *retroactively*, such that the first brother was never Zekukah to the second woman (and thus when he did Yibum with the first sister, he did not transgress the Isur of "Achos Zekukaso"). Rashi is saying that the Zikah is removed retroactively, because if it is only removed from the point of Yibum onwards (and until that point she was considered Zekukah to each brother), then why should her Yibum (or Chalitzah) permit her sister to the other brothers? It should be the same as a man who was once married to a woman and divorced her, and now he is Asur to her sisters (the marriage bond that once existed between the man and the woman is not removed retroactively)!

We also learned (17b) that in the case of a man who was Mekadesh the sister of his Yevamah (his "Achos Zekukaso"), we tell him to wait until his brother does Yibum with the Yevamah, and once Yibum has been done, the Isur of "Achos Zekukaso" is removed, since the Yevamah is no longer Zekukah to the first brother. We see from here, again, that after Yibum is done, no Isur of "Achos Zekukaso" remains. It must be that the Zikah is uprooted retroactively.

Why, then does Rashi say here that the reason why the second woman is Asur to the second brother is because she became Asur for one moment and thus remains so forever? Why is the Zikah not removed retroactively?

ANSWERS:

(a) It could be that the Zikah is indeed removed retroactively, as Rashi says earlier (23b). Nevertheless, Rashi says at the end of the Mishnah that one of the brothers did an Isur ("Isura d'Avad Avad") by doing Yibum with one of the sisters before the other brother did Chalitzah with the other sister, since at the time he did Yibum, he could not be sure that his brother would uproot the Zikah of the second sister from him by doing Yibum or Chalitzah with her. He could not have known that his brother was going to do Yibum with the other sister and thereby remove the Zikah in case the second sister was the real Yevamah. At the time that he lived with her, she was "Achos Zekukaso" even though the Zikah was later uprooted retroactively, because what he did -- at the time that he did it -- was Asur.

Also, in the case of the four brothers (26a), Rashi says that each Yevamah was "Ne'esrah" for one moment because of this Isur of "Achos Zekukaso." Even though the Isur will be removed after the first brother does Chalitzah, at the time that the first brother did Yibum (before the other brother did Chalitzah), it was Asur, because he had no way of knowing that his brother would do Chalitzah. It is not just a Safek what the reality is, but it is a Safek what will occur in the future. (This dichotomy is easier to understand if we maintain "Ein Bereirah" (that we cannot clarify the status of something in the past based on an event in the future). We cannot clarify that the status of the woman with whom the first brother did Yibum was that she was permitted based on the future event of the second brother doing Chalitzah with her sister, the other Yevamah. It is not similar to the case in the Mishnah (23b), in which it is just a Safek which woman the deceased man married, in which case we simply are missing information that already exists at the time, and not information about a future event.)

(b) The RASHASH contneds that the word "l'Mafrei'a" ("retroactively") in Rashi on 23b seems to be an incorrect Girsa. Rashi does not mean to say that the Zikah is removed retroactively at all, but rather that the Isur is removed only from the time of Yibum or Chalitzah. That is how she became "Ne'esrah" for one moment (because there was Zikah before the Yibum was done), and that is why Rashi says that the brother did an Isur at the time that he did Yibum with her.

Regarding the question why "Achos Zekukaso" is permitted after the second brother does Yibum or Chalitzah with the other sister (the Rashash does not address this question), the answer might be that the Chachamim compared an "Achos Zekukaso" after Chalitzah was done with the Zekukah (and the Isur of Zikah was removed) to an "Achos Ishto" after the death of the wife (and not to an "Achos Ishto" after the divorce of the wife), in which case the surviving sister is Mutar. The reason is that in a case of divorce, it is the action of the husband that removes the Ishus, the bond of marriage, from his wife (the first sister). When it is his action that removes it, the Torah does not permit the woman's sisters to him. In contrast, in a case of death, it is not the action of the husband that removes the Ishus from his wife, the first sister. Similarly, when the second brother does Yibum or Chalitzah with his Zekukah, it is not the action of the remaining brother that removes the Zikah between him and the Yevamah. Therefore, it is comparable to an "Achos Ishto" after the death of the wife (the first sister), in which case the second sister is permitted to him. (According to this logic, the *mother* or *daughter* of all the Zekukos will indeed be prohibited to *all* the brothers even after one does Yibum or Chalitzah.)

QUESTION: The Gemara raises a contradiction between Mishnayos. Our Mishnah (23b) discusses a case of a man who was Mekadesh one of two sisters and forgot or does not know whom he was Mekadesh. If the man dies childless and he has two brothers, one should do Chalitzah with one of the sisters, and the other brother should do Yibum with the second sister. The Mishnah adds that b'Di'eved, if the two brothers went and did Yibum with both of the sisters before inquiring from Beis Din what they should do ("Kadmu v'Kansu"), they may keep their wives ("Ein Motzi'in").

The Mishnah later (26a) seems to contradict this Mishnah. The Mishnah there discusses a case of four brothers, two of whom married sisters and died childless. The remaining two brothers must each do Chalitzah with one of the sisters, and neither may do Yibum. The Mishnah adds that b'Di'eved, if the two brothers went and did Yibum with both of the sisters before inquiring from Beis Din what they should do ("Kadmu v'Kansu"), then they must divorce their wives with whom they did Yibum ("Yotzi'u").

What is the Gemara's question when it asks this contradiction? There seem to be two possible contradictions that the Gemara might be addressing. First, our Mishnah permits the second brother to do Yibum after the first brother does Chalitzah, while the Mishnah later does not permit the second brother to do Yibum. Second, our Mishnah says that b'Di'eved, if both brothers did Yibum, then "Ein Motzi'in" -- they do not have to divorce their wives, while the Mishnah later says that b'Di'eved, they do have to divorce their wives. Is the Gemara asking from the first Halachah -- what the brothers should do l'Chatchilah, or from the second Halachah -- what the brothers should do b'Di'eved?

RASHI is unclear on this point and seems to give two opposing explanations. Rashi (DH 23b, DH Mai Shena) says that the question is from the second Halachah of "Kadmu v'Kansu." However, in his next comment (DH Choltzos v'Lo Misyabmos), he says that the question is from the first Halachah, that our Mishnah says that the second brother may do Yibum, while the Mishnah later does not permit either brother to do Yibum! (From the Gemara itself it seems more likely that the question from the first Halachah of the Mishnah, since the Gemara does not even quote the second part of the Mishnah of "Kadmu v'Kansu Ein Motzi'in," as TOSFOS asks in DH u'Mai Shena.)

Also, in the answer of the Gemara (24a), Rashi also seems to contradict himself. The Gemara answers that in the Mishnah later, in the case of the four brothers, the Yevamos are Asur to each brother either because of "Yesh Zikah" (and thus each one is "Achos Zekukaso") or because of "Bitul Mitzvas Yevamim." In contrast, the Isur of the sisters in the case of our Mishnah is only a Safek Isur, since each sister might be either the Yevamah or the sister of the Yevamah.

Rashi (24a, DH v'Iy l'Man d'Amar) first explains the answer of the Gemara according to the *second* way he explained the question, that the question is from the first Halachah in our Mishnah, that the second brother may do Yibum, while the Mishnah later does not permit either brother to do Yibum. Rashi explains that in the Mishnah later, there is an Isur to do Yibum because even after one brother does Chalitzah with one of the sisters, the second sister remains Asur to the second brother because she had been Asur for one moment ("Ne'esrah Sha'ah Achas"). But in our Mishnah, there is no Isur of "Ne'esrah," because the second sister -- if she was not the Yevamah -- was never married to the deceased brother and was never Asur; she was neither a Yevamah nor a Tzarah of the Yevamah.

However, Rashi then proceeds to explain the Gemara's answer as saying that in our Mishnah, if b'Di'eved the brothers already married the sisters, the reason they may stay married is because each brother may claim that his wife is the real Yevamah, whereas in the case of the four brothers, we know for sure that at least the first one that did Yibum transgressed the Isur of "Achos Zekukaso." This answer, though, is answering the contradiction from the b'Di'eved case of "Kadmu v'Kansu" and is explaining why there is a difference between the two Mishnayos with regard to the Halachah in a case of "Kadmu v'Kansu." If Rashi is learning that the Gemara was asking a question, and is now answering that question, from "Kadmu v'Kansu," then why did he have to mention the point of "Ne'esrah," which prohibits the brothers from doing Yibum *l'Chatchilah*? (RITVA, RASHASH)

Furthermore, Rashi seems to contradict himself in another place as well. Rashi here, in the Gemara's answer, explains that the Gemara is asking from the cases of "Kadmu v'Kansu," that our Mishnah lets them stay married b'Di'eved, while the later Mishnah requires them to divorce their wives. The Gemara answers that in our Mishnah, the brothers that did Yibum did not transgress a certain Isur.

However, in the end of his explanation on the Mishnah, Rashi seems to give another reason why they may stay married if, b'Di'eved, they went ahead and both did Yibum with the two sisters. Rashi says that it is not only because each one only did a Safek Isur, but because even if the first brother did marry the "Achos Zekukaso" and not the real Yevamah, nevertheless after the second brother does Yibum, he removes the Zikah from the first brother (retroactively) so that the first brother's wife is no longer considered "Achos Zekukaso!" Neither of the sisters can be called "Achos Zekukaso" (not even out of doubt) once they both did Yibum and removed all Zikah retroactively. But in the case of the four brothers this is not true -- even after the second brother does Yibum, the first brother's wife remains Asur to him because of "Ne'esrah" -- at one moment in the past she was certainly Asur to him (because when they fell to Yibum she was his "Achos Zekukaso" for certain). In the case of our Mishnah, though, it turns out that each sister was never Asur for one moment, because if this woman is the real Yevamah, then she was always Mutar, and if her sister is the real Yevamah, then she was never married to the deceased brother to begin with, and she was not the sister of a woman who was Zekukah to him because the other brother removed that Zikah when he did Yibum (see TOSFOS REBBI AKIVA EIGER)!

Finally, what is the advantage does each way of understanding the Gemara's question and answer have over the other way?

ANSWER: It is clear from TOSFOS and from the other Rishonim that according to their text of Rashi, Rashi explained that the question of the Gemara was from the case of "Kadmu v'Kansu," the b'Di'eved situation. It seems that Rashi, at a later time, changed his mind about how to explain the Gemara, and he added his new explanation to his commentary. Consequently, the explanation that appears in our texts is a combination of the two. (See our introduction to Eruvin.)

The first version of Rashi (23b) was that the question of the Gemara was from the case of "Kadmu v'Kansu," as the Rishonim quote Rashi. Rashi in the answer of the Gemara also wrote (at the end of DH v'Iy l'Man d'Amar) that the Gemara is answering that question by saying that in our Mishnah, the Isur that the brothers did is only a Safek Isur, while in the Mishnah later the Isur is a definite Isur. (This is also the intention of Rashi later on 28a, DH b'Shlama).

At a later time, Rashi apparently rescinded his first explanation, and he wrote the other comments (23b, DH Choltzos v'Lo Misyabmos, until the word "Hilkach" in the end of DH v'Iy l'Man d'Amar on 24a). Rashi also added the sentence starting with the word "v'Iy Nami" in the end of his commentary on the Mishnah, and the sentence starting with the words "v'Leis Lei" later (27b, DH Mesah Rishonah), until the words "Su Lo Mishtaryah."

Why was it that Rashi originally understood the Gemara's question to be from the case of "Kadmu v'Kansu," the b'Di'eved case mentioned in the Mishnah, if the Gemara does not even quote those words?

The RITVA and RASHBA explain that Rashi found the Gemara's answer inconsistent with the question if it was asking from why none of the brothers (in the Mishnah on 26a) may not do Yibum l'Chatchilah. First, did the Gemara know that there is such an Isur of "Ne'esrah" when it asked its question, or did it not know of such an Isur? If it did not know that there is an Isur of "Ne'esrah," then what is the Gemara's answer? The Gemara cannot be answering that there *is* an Isur of "Ne'esrah" in the case of the Mishnah later (the way Rashi explains the answer in his first explanation in DH v'Iy l'Man d'Amar), because then the Gemara would not need to add in its answer that in our Mishnah, "perhaps each one [can claim that he] will get the right sister (the one who is the real Yevamah);" since, in our Mishnah, even if they get the wrong sister, there is no Isur here of "Ne'esrah," so each brother is Mutar to the woman with whom he did Yibum, whether she is the real Yevamah or whether she is the Yevamah's sister!

The second problem that Rashi had with the Gemara's answer, if the Gemara's question was from the first Halachah of the Mishnah (of doing Yibum l'Chatchilah), was that Rashi originally held like the Rishonim that the Isur to be Mevatel the Mitzvah of Yibum does not remain Asur after Zikah is removed (that Isur is not an Isur prohibiting the act between that man and that woman, but it is an external Isur meant merely to prevent forfeiting a different Mitzvah of Yibum). Therefore, since the Gemara in its answer equates the opinion of "Yesh Zikah and the opinion of "Asur l'Vatel Mitzvas Yevamim," it cannot be saying that the woman is Asur in the case of the four brothers because of "Ne'esrah," because the Gemara cannot be using such an answer according to the opinion of "Asur l'Vatel Mitzvas Yevamim!" The Gemara's answer must mean something else -- that in the case of the four brothers, the Chachamim decreed that the brothers should not have one brother do Chalitzah and then the other brother do Yibum, because they might reverse the order and thereby commit a definite Isur (of "Achos Zekukaso" or of Bitul Mitzvas Yibum).

Why, then, according to the opinion that holds "Yesh Zikah," did the Gemara not answer simply that in the case of the four brothers, each woman was "Ne'esrah" at one point in time? The Gemara did not have to refer to the Gezeirah according to the opinion that holds "Yesh Zikah!" It must be that the Gemara was never asking its question according to the opinion of "Yesh Zikah," because it knew all along that there is an Isur of "Achos Zekukaso" that prevents the brothers there from doing Yibum. Why, then, did the Gemara ask the question ambiguously, without specifying that the question is only according to the opinion that holds "Ein ZIkah?" And why in the answer did the Gemara mention at all the opinon that holds "Yesh Zikah?"

Because of these questions, Rashi originally explained that the question of the Gemara was from the second part of the Mishnah, of "Kadmu v'Kansu." The Gemara knew all along that there was a problem there (26a) of "Achos Zekukaso" preventing the brothers from doing Yibum l'Chatchilah, and its only question was why, b'Di'eved, in the case of our Mishnah may the brothers stay married, and in the case of the Mishnah later, they must divorce their wives. To this the Gemara answers that in the case of the Mishnah later, the brothers committed a definite Isur, while here they only did a Safek Isur.

Afterwards, Rashi was not satisfied with this explanation of the Gemara's question. He reasoned that the question cannot be from the case of "Kadmu v'Kansu," because if so, there is an obvious difference between our Mishnah and the Mishnah later in a situation of "Kadmu v'Kansu." In our Mishnah, there is no Isur after the brothers married the sisters, whereas in the Mishnah later there is still an Isur after they married the sisters, so the Gemara would not have to answer that one Mishnah (the one on 26a) is a case of a definite Isur, and one Mishnah (the Mishnah here) is a case of a Safek Isur. The Gemara could simply answer that in our case, the Zikah is removed completely and the brothers are no longer doing any Isur by being married to the women!

Rashi therefore changed his mind and explained that the Gemara originally did not know of the Isur of "Ne'esrah," and the Gemara answers that there is an Isur of "Ne'esrah" not only according to the opinion that holds "Yesh Zikah," but even according to the opinion that it is Asur to be Mevatel the Mitzvah of Yibum. When the Gemara adds that in our case, perhaps each brother is getting the right woman, it was answering a different question altogether, that even if there is no Isur to do Chalitzah and then do Yibum (because there is no problem of "Ne'esrah" here), it should still be Asur d'Rabanan for the second brother to do Yibum, because perhaps the brothers might reverse the order, doing Yibum first and then Chalitzah (in which case the first brother might transgress the Isur of "Achos Zekukaso" if the woman with whom he does Yibum is not the real Yevamah). To that the Gemara answers that even if the brothers mistakenly reverse the order, there will only be a *Safek* Isur of "Achos Zekukaso," and a Safek Isur is not a strong enough reason for the Chachamim to prohibit doing Chalitzah and then Yibum lest the brothers reverse the order.

Rashi later (27b) points out that this understanding seems to contradict what Rav says (on 27b), that the Isur of "Ne'esrah" does not apply in the case of two sisters who fall to one brother. If we say that according to the opinion that it is "Asur l'Vatel Mitzvas Yevamim" that "Ne'esrah" cannot apply (because that Isur is not strong enough to make her considered Asur for one moment), then Rav might be holding like that opinion (see Tosfos 27b, DH Aval). But now, according to Rashi's second way of explanation the Gemara, the Gemara is concluding that we always say "Ne'esrah," even according to the opinion of "Asur l'Vatel Mitzvas Yevamim." It must be that Rav there is arguing with the Gemara here.

QUESTION: The Gemara says that the Mitzvah is for the oldest brother to do Yibum. If he does not want to do Yibum, then we ask a younger brother, and if none of the younger brothers want to do it, then we force the oldest brother to do Yibum. The Gemara derives that the Mitzvah is for the oldest brother to do Yibum from the verse, "v'Hayah ha'Bechor" (Devarim 25:6). The Gemara asks that perhaps the verse is teaching that the Mitzvah of Yibum only applies when there is a Bechor, and it does not apply at all when there is no Bechor. How do we know that Yibum applies even if the oldest brother is not a Bechor? Perhaps only when there is a Bechor is there a Mitzvah of Yibum!

The Gemara answers that the verse teaches that "just like the Bechorah of the Bechor causes him [to have the Mitzvah of Yibum], so, too, the seniority of the oldest son causes him [to have the Mitzvah of Yibum]."

What does the Gemara's answer mean? We know that a Bechor has a number of special Halachos that apply only to a Bechor and not to a brother who happens to be the oldest brother but not a Bechor. Why does the Gemara say that the oldest son is special just like a Bechor is special? That is not true; a Bechor is special not because he is the oldest, but because he is the firstborn son, whereas the oldest brother might not necessarily be the firstborn son!

ANSWER: The RASHBA explains that it is clear that as far as Yibum is concerned, the Gemara rejects its original assumption that a Bechor is unique by virtue of the fact that he is the firstborn son. As far as Yibum is concerned, it makes no difference whether he is the Bechor or he is the oldest. The fact that he is the firstborn is not relevant. What is relevant is the brother's age. If he is the oldest son, then the Mitzvah to do Yibum falls on his shoulders first. The age makes a difference because it is appropriate for the oldest brother to take responsibility for the deceased brother's family. If he shirks the responsibility, then it falls to the younger brothers. (When the Gemara says that "the Bechorah of the Bechor causes him [to have the Mitzvah of Yibum]," it refers to his age and means the fact that he is the oldest, and not the fact that he is the firstborn, causes him to have the Mitzvah of Yibum.)

24b