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Yevamos, 26

1) PERMITTING THE CHACHAM TO MARRY A WOMAN WHOM HE ENABLED TO GET DIVORCED

QUESTION: The previous Mishnayos (25a, 25b) state that in a case of a man who enabled a woman to become divorced from her husband (such as a Chacham who did not annul a woman's vow against her husband, thus requiring that she get divorced; a Shali'ach who brought a Get from abroad and, based on his testimony to the validity of the Get, the woman is able to remarry; a single witness who testified that a woman's husband died, thus permitting her to remarry), the man is prohibited from marrying the woman whom he enabled to remarry, since we suspect that he might have had lied since he had improper motives for permitting her. The Mishnah here (26a) states that if the Chacham, Shali'ach, or single witness was married at the time that he enabled the other woman to remarry, and later his wife died, then he is permitted to marry the woman whom he had permitted.

The Gemara infers from the Mishnah that he is permitted to marry the other woman only if his own wife dies, but not if he divorces his wife. If he divorces his wife, we suspect that perhaps he divorced her in order to marry the woman whom he permitted. The Gemara questions this from a Beraisa which says that even if he later divorces his own wife, he may still marry the woman whom he permitted.

The Gemara answers that it depends on whether or not there was a dispute between the Chacham and his own wife. The simple meaning of the Gemara is that if the Chacham divorced his wife because of a dispute that existed at the time that he permitted the other woman to remarry, then it is prohibited for him to marry her because we suspect that he was planning to divorce his wife at the time that he permitted her, and he permitted her only in order to marry her himself. But if the Chacham divorced his wife without having any argument at all at the time he permitted the other woman, then we do not suspect that he permitted the other woman in order to marry her (because he presumably had a content marriage). That is, we only suspect that he wants to permit the other woman because he needs a new wife; we do not suspect that he will choose to destroy his presently content marriage in order to marry this other woman.

RASHI (DH Ha), though, says that if there was a previously existing argument between the Chacham and the wife, then we *permit* him to marry the other woman, because at the time that the argument started, he was not aware of the other woman. But if at the time he permitted the other woman to remarry there was no argument between him and his wife, and then at a later time he divorces his wife, we do *not* permit him to marry the other woman, because we suspect that he might have had in mind to marry her when he permitted her (and that is why he later divorced his wife). We suspect that even if he did not need a new wife at the time that he permitted the other woman, when he met her he became more interested in her than in his own wife and decided to discard his old wife in favor of the new woman.

Why did Rashi explain the Gemara this way? It seems clear from the Mishnayos that even if the Chacham was not married at the time he permitted the other woman and had no wife to divorce, he is not allowed to marry the woman because it looks like he permitted her with improper motives, even though he did no action to lead us to that conclusion (other than marrying the woman). Why does Rashi say that if he was arguing with his wife before he permitted the other woman, then he is permitted to marry the other woman, because we have no grounds to assume that he is divorcing his wife *because* of the other woman? Even if he divorces his wife for a pre-existing reason, we should still suspect that he had improper motives when permitting the other woman!

Furthermore, the NIMUKEI YOSEF (who explains the Gemara like Rashi), cites the Yerushalmi that says that if the wife was ill at the time the Chacham permitted the other woman to remarry, then he may not marry that woman. What is the difference between having a dispute with his wife, in which we do not suspect him of permitting the other woman with improper motives, and a case when his wife is ill, in which case we do suspect him of improper intentions? In either case, we should suspect that he has in mind marrying the other woman when he permits her to remarry! (YAM SHEL SHLOMO 2:21; BEIS SHMUEL EH 12:8; VILNA GA'ON EH 12:9)

ANSWER: The KORBAN NESANEL (2:12:50) answers that our Mishnah which does not permit him to marry a woman after divorcing his wife, does permit him to marry a woman after his wife dies. If the prohibition to marry the other woman applies in the case when there is discord existing between the wife and the husband, then the cases of divorcing his wife, and his wife dying, are exactly the same; if the Chacham expected that his wife would be divorced or would die, then he is prohibited from marrying the other woman, since we must assume that had her in mind when he permitted her to remarry! Why, then, does the Mishnah limit the Heter to when his wife dies? It must be that there is a difference between death and divorce. In the case of divorce, even if he was *not* arguing with his wife at the time that he permitted the other woman to remarry, he is not permitted to marry that woman, since he might have divorced his wife intentionally in order to marry the other woman.

What, though, is the reason that we are more *lenient* in the case of divorce, permitting the Chacham (or courier, or witness) to marry the woman he permitted even though he was *already quarreling* with his wife? As the Nimukei Yosef wrote, in the case of death, when the wife was sick at the time that he permitted the other woman to remarry, he is *not* allowed to marry that woman. It would seem logical to suspect him in both cases of harboring intentions to marry another woman!

(a) The Korban Nesanel suggests that when there is discord between him and his wife, he does not expect to divorce her, because people always fight with their spouses and do not always divorce them. But if his wife is very ill, then we assume that he expects to marry someone new.

This logic, though, is unclear, because the Yerushalmi is not discussing a situation when his wife is deathly ill, but "Cholanis." According to the principle that "Rov Cholim l'Chayim," we normally presume that most sick people will live. Thus, even if she dies later, we cannot assume that he had in mind to marry someone else at the time that she was sick, when he permitted the other woman to remarry. To the contrary, in the case of divorce -- since there was marital discord and he eventually divorced his wife -- it should be assumed that all along he was planning to divorce her, and thus we should suspect him of harboring intentions to marry the woman whom he permitted to remarry!

(b) Perhaps we can explain Rashi as follows. Rashi in the Mishnah (DH sh'Hayu Lahem) says that when the Mishnah says, "they had wives but the wives died," this means that they died "after a long time" ("l'Achar Zman"). How did Rashi know this? Perhaps the Mishnah means simply that the wife died, whether she died a long time after he permitted the other woman to remarry, or shortly thereafter. How does Rashi know that it was specifically "after a long time?"

One might suggest that Rashi is telling us the Chidush of the Yerushalmi, that if his wife was already sick and nearing death at the time that he permitted the other woman to remarry, then he may not marry the other woman. However, it is unlikely that this is what Rashi is saying, because that has nothing to do with *when* she dies, but rather with whether she was sick or not at the time that he permitted the other woman to remarry. Why, then, does Rashi say "l'Achar Zman?"

It could be that Rashi is answering our question. Rashi does not say "l'Achar Zman" because of the case of the wife dying, but because of the case of divorce. Rashi means that the reason the Mishnah omitted the wife becoming divorced is because if the Chacham divorced his wife "after a long time," then we suspect that he had in mind to marry the other woman at the time he permitted her, and he kept that thought in his mind until some time had passed and the opportunity to divorce his wife without suspicion arose.

In such a case, the Beraisa tells us that if they had a dispute at the time that he permitted the other woman, then it is *permitted* for him to marry the other woman when he divorces his wife after a long time has passed. The logic is that since he was fighting with his wife at the time he permitted the other woman, if he really had in mind to marry the other woman, then he would certainly have divorced his wife earlier (since it would not look suspicious). The fact that he continued to stay married to her for so long shows that he really did not have in mind to divorce his wife, and when he permitted the other woman to remarry, he did so with proper intentions.

That is why Rashi says that the Mishnah is referring to "l'Achar Zman" -- because if the wife would have died immediately after he permitted the other woman, then the *Beraisa* would not say "even if he divorced his wife" he is permitted to marry the other woman, because if he divorced his wife *right away*, it is *prohibited* for him to marry the other woman!

(c) The VILNA GA'ON (EH 12:9) argues with the Nimukei Yosef and asserts that the Yerushalmi makes no such statement that in a case where his wife is ill and then dies, it is prohibited for the Chacham to marry the other woman. Rather, even if his wife is ill, he may also marry the other woman after his wife dies, since he did not plan on his wife dying. Accordingly, in a case of divorce, even though he and his wife were fighting he presumably did not think that their quarrel would lead to divorce.

YESHU'OS YAKOV, cited by the PISCHEI TESHUVAH there, suggests a similar approach, asserting that even according to the Yerushalmi a man does not expect his wife to die just because she is sick. Rather, if his wife is sick he needs another wife to tend to his needs, and that is why he is suspected of permitting the other woman deceitfully. If so, it may easily be suggested that there is no reason to suspect he planned on divorcing his wife just because they were quarreling.

QUESTION: The Mishnah states that in the case of a man who enabled a woman to become divorced, if that woman then married someone else and then her husband died or divorced her, she is then permitted to marry the man, such as the Chacham, Shali'ach, or single witness, who permitted her to remarry in the first place. The Gemara explains that the Mishnah does not mean that the widow (in the case when a single witness enabled her to remarry by testifying that her husband died) may marry the witness after her second husband dies (but rather, only if he divorces her), nor does the Mishnah mean that the divorcee (in the case when a Chacham or Shali'ach enabled her to get divorced) may marry the Chacham or Shali'ach after her second husband divorces her (but rather, only if he dies). In those two cases, a third man is not permitted to marry her because of Rebbi's ruling. RASHI explains that Rebbi's ruling was "there is a Chazakah that she causes her husbands to die or to divorce."

It is clear from Rashi that not only does a Chazakah of two dead husbands prohibit a third man from marrying her, but also a Chazakah of two divorces prohibits a third man from marrying her. This is also the implication of the Gemara which says that the Mishnah cannot be permitting her to remarry after she was divorced twice.

How can Rashi say that being divorced twice prohibits a third man from marrying her? The Gemara later (64b) says that Rebbi's logic for prohibiting a woman after two deaths is either because of "Ma'ayan Gorem" or "Mazal Gorem" -- either her Nidah flow is a physical factor causing her husbands to die, or her inauspicious Mazal causes them to die. The Gemara says that a difference between the two reasons is a case where her husband died after Erusin, before the woman moved into her husband's house: according to the opinion that "Ma'ayan Gorem," if the husband died after Erusin, that does not count towards making a Chazakah that she causes her husbands to die.

We can understand how "Mazal Gorem" can be applied to divorce; after two divorces, it is evident that she has an inauspicious Mazal that causes her to get divorced. How, though, does "Ma'ayan Gorem" apply to divorce? If it indeed does not apply to divorce, then the Gemara there should have said that this is another difference between "Ma'ayan Gorem" and "Mazal Gorem!" (VILNA GA'ON and BE'ER HETEV, EH 9:8)

Moreover, even if the woman has established a Chazakah to get divorced, why should that prohibit a third man from marrying her? At worst, she will get divorced a third time. Why should it be *Asur* to marry her?

ANSWER: Even though the literal argument of "Ma'ayan Gorem" does not apply to divorce, it may certainly be suggested that the woman's physical nature is to blame for her recurring divorce; perhaps she is easily excitable. Therefore, both the opinions that "Mazal Gorem" and "Ma'ayan Gorem" agree that two divorces will give her a Chazakah that she will get divorced again, either because of her Mazal, or because her physical nature causes her to get into arguments and get divorced.

Regarding why one should not marry a woman who has a Chazakah to get divorced, it could be that it is not prohibited per se, but merely the Chachamim are giving good advice, "Etzah Tovah," not to marry a woman who has been divorced twice (YASHRESH YAKOV); the Gemara is asking that the Mishnah would not tell her that she can marry a third man l'Chatchilah if doing so goes against the better judgment of the Chachamim and is discouraged.

HALACHAH: We rule like Rebbi in a situation of a mortal danger, such as in the case of marrying a woman who has had two husbands who have died, and we follow a Chazakah after only two incidents have established that Chazakah. The REMA cites Rashi (EH 9:1) that applies this Halachah to a case of a woman who was divorced twice, but afterwards he cites TOSFOS (DH a'Gerushin) and the other Rishonim here, who, despite the implication of our Gemara, argue with Rashi and say that Rebbi prohibits remarriage only after being widowed twice, and not after being divorced twice. The Rema concludes that the opinion of Tosfos is the proper one ("v'Chen Ikar").

26b

QUESTION: Rav says that when three sisters fall to Yibum to two brothers, one brother does Chalitzah with one sister, the other brother does Chalitzah with the second sister, and then both brothers must do Chalitzah with the third sister. The Gemara says that we learn from this statement that Chalitzah with one's "Achos Chalutzaso" (the sister of a woman with whom he did Chalitzah) is considered a "Chalitzah Pesulah," and whenever a Chalitzah Pesulah is performed, it must be done by all of the brothers in order to take effect and release the woman from the requirement of Yibum (this is because the bond of Zikah is too strong to be broken by a Chalitzah Pesulah).

"Chalitzah Pesulah" is defined as a Chalitzah done by a brother who could not have done Yibum. In our case, the Chalitzah done with the third sister is a Chalitzah Pesulah, because neither brother could do Yibum with her, since she is Asur to both brothers because of "Achos Chalutzaso" (she is the sister of the women with whom each brother did Chalitzah).

Rashi cites another Girsa which he rejects. According to that Girsa, the Gemara infers from the *beginning* of the Beraisa that Chalitzah Pesulah must be done by all of the brothers. The beginning of the Beraisa says that each brother does Chalitzah with one sister. Why can one brother not do Chalitzah with all of the sisters? It must be because once he does Chalitzah with one sister, all of the other sisters are Asur to him from doing Yibum because of "Achos Chalutzaso" (and thus in order to release them, they need Chalitzah either from another brother who can do Yibum with them, or they need Chalitzah Pesulah from all of the brothers).

Why does Rashi reject that Girsa? That seems to be just as valid a proof that a Chalitzah Pesulah must be repeated by all of the brothers!

ANSWER: TOSFOS (DH mid'Ka'amrit), the RAMBAN, and other Rishonim explain that the second sister certainly needs Chalitzah from the second brother, even if a Chalitzah Pesulah does not need to be given by all of the brothers. This is because the second sister *could* get a perfectly valid Chalitzah from someone who could do Yibum with her -- the second brother. And everyone agrees that in a case where she could either get a perfectly valid Chalitzah or a Chalitzah Pesulah, she must get the better Chalitzah. (As we see on 27a, that if it is possible to do a good Chalitzah, then one may not do a Chalitzah Pesulah.) Therefore, the Gemara brings the proof from the third sister, where there is no brother with whom she could do a proper Chalitzah, and thus she does a Chalitzah Pesulah and it must be done by all of the brothers.