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Yevamos, 35

35b

The Mishnah teaches that if a man dies childless but leaves behind a pregnant wife who later gives birth to a child, and the child dies within thirty days, the child is deemed a "Nefel," stillborn, and the woman is thus obligated to do Yibum.

Based on this Halachah, the ME'IRI (Yevamos 17a) offers an ingenious insight into the justice of Shlomo ha'Melech (see also DRASHOT IBN SHU'IB on Parashas Mishpatim; SHEMEN ROKE'ACH -- by the author of Sha'ar Ha'chazakos -- in his introduction, YEDEI MOSHE to Shir ha'Shirim Raba 1:1:10).

The Navi relates that Hashem promised Shlomo at the age of twelve that he would be granted great wisdom; he would be the wisest man ever to live (Melachim I 3:12). In order to illustrate that the blessing of immeasurable wisdom was indeed fulfilled, the Navi relates a case that was brought before Shlomo and how Shlomo arbitrated the case.

Two women came to the king, arguing over a child. One woman claimed that the child was hers, while the other claimed that the child was hers. The Navi records in detail each woman's claim:

"One woman said: 'My master, I and this woman dwell in the same house, and I gave birth while with her in the house. On the third day after I gave birth, this woman gave birth as well. We live together; there is no outsider with us in the house; only the two of us were in the house. The son of this woman died that night, because she lay upon him. She arose during the night and took my son from my side while I was asleep, and laid him in her bosom, and her dead son she laid in my bosom. When I arose in the morning to nurse my son, behold, he was dead! But when I observed him [later on] in the morning, I realized that he was not the son to whom I had given birth!'

"The other woman replied: 'It is not so! My son is the live one, and your son is the dead one.' But the first woman said, 'It is not so! Your son is the dead one, and my son is the live one!' And they went on speaking before the king.

"The king said, 'This one claims: My son is the live one, and your son is the dead one. And the other claims: It is not so! Your son is the dead one, and my son is the living one.' So the king said, 'Get me a sword!' and they brought a sword before the king. The king said, 'Cut the living child in two and give half to one and half to the other.'

"The woman whose son was the live one turned to the king, because her compassion was aroused for her son, and she said, 'Please, my master, give her the living baby, and do not kill it!' But the other one said, 'Neither mine nor yours shall he be. Cut!' The king spoke up and said, 'Give her (the first woman) the living baby and do not kill it; she is his mother!'" (I Melachim 3:16-27)

There is an obvious problem with this incident as it is recorded by the Navi. The woman who was lying was obviously interested in taking the child for herself, for otherwise, the case would never have been brought before the court. However, when the real mother offered to let the liar keep the child in order to spare its life, the liar refused, insisting that the court kill the baby -- "Neither mine nor yours shall he be. Cut!"

Why did she suddenly lose interest in having the child for herself? Furthermore, granted that Shlomo's wisdom gave him the insight to foresee that one of the women would back down when she heard of his intention to kill the infant, but how could he possibly have known that the other woman would react the way she did -- by insisting on complying with the brutal "compromise?" Surely it was more likely that the second woman would respond, "Yes, you have finally admitted that the child is mine! I see that although you are cruel enough to steal my child, you are not so ruthless as to see him killed for your lie!" What, then, would Shlomo have done? The liar would have walked away victorious!

The Me'iri explains Shomo ha'Melech's thought process as follows. The Midrash (Koheles Rabah 10:16; Shir ha'Shirim Rabah 1:1:10) tells us that the reason both of these women were so desperate to have the living child declared theirs was that they were both potential Yevamos. The husbands of both women had died with no other living children. Whichever woman would be judged to be the childless woman would not only lose the infant, but would also be stranded in the unpleasant situation of a Yevamah, being bound to marry the brother of her deceased husband. Another Midrash asserts that the husbands of the two women were father and son. That is, one woman was the mother-in-law of the other.

Combining the facts related to us by these two Midrashim, it emerges that the two women -- the mother-in-law and the daughter-in-law -- had just become bereaved of their husbands, and they each needed a live child to exempt them from the status of Yevamah. Both gave birth to babies. However, these two babies were less than thirty days old at the time that one of them died, as the verse states. The mother of the dead child would therefore be subject to the laws of Yibum. This, then, was the motive of the deceitful mother in attempting to kidnap the other woman's child!

Now, if it was the mother-in-law's child who had died, she would have no reason to try to seize her daughter-in-law's child. The living child -- if he was not her own child -- was at least her *son's* child, and a grandchild is enough to exempt one from Yibum (Yevamos 70a)! Only the daughter-in-law would have a motive to lie and to claim that the child was hers. If it was her baby who had died within thirty days of birth, leaving her childless, she would indeed be bound to her husband's brother as a Yevamah. Who, though, would that brother be? That brother would be none the living baby -- her mother-in-law's child -- who is her deceased husband's brother!

Since her brother-in-law was a newborn infant, the daughter-in-law would have to wait thirteen years before this brother would be able to perform Chalitzah with her and free her to marry others (Yevamos 105b; a Katan cannot perform Chalitzah)! This baby was the only living brother of her husband. There could not have been any other older brothers because, as the Midrash points out, the mother-in-law was herself a potential Yevamah. This means that her husband had no living children except for the baby in question.

Shlomo ha'Melech, in his wisdom, realized all of this. He reasoned that since the only one with a strong motive to lie was the daughter-in-law, the child must really belong to the mother-in-law. In order to confirm this conclusion he ordered that the child be cut in half. What would that accomplish?

If the child were to be killed, this would free the daughter-in-law from her Chiyuv of Yibum, since the living baby was her only brother-in-law. In fact, from the daughter-in-law's perspective, killing the child would be an even *better* solution. True, by kidnapping the child she might convince the court that she was not a Yevamah, but she herself would know that the child was not really hers and that she really was not permitted to remarry until Chalitzah was performed. By having the baby killed, though, she would be fully released from the obligation of Yibum! This is the reason the daughter-in-law suddenly lost interest in keeping the child when she saw that Shlomo ha'Melech was ready to cut the child in half. This would serve her interests even better than taking the child for herself. "Cut!" she insisted.

Shlomo had predicted that this would be the woman's reaction to his suggestion. By tricking her into making such a seemingly ludicrous statement, he revealed her true motives. In this manner, Shlomo demonstrated beyond doubt that the daughter-in-law was indeed lying!

QUESTION: Rebbi Yochanan and Reish Lakish argue whether Yibum and Chalitzah with a Me'uberes, a pregnant Yevamah, takes effect or not. According to Rebbi Yochanan, if the baby that is born later does not, then that shows, retroactively, that there was an obligation to do Yibum ("Tigli Milsa l'Mafrei'a") and the Yibum or Chalitzah that the woman did while she was pregnant was effective (see Chart #11). Reish Lakish argues and maintains that we cannot determine retroactively that there was an obligation to do Yibum, and thus any act of Yibum or Chalitzah that was done at that time was not effective.

The Gemara cites a proof for Rebbi Yochanan from the Mishnah that says that if a Yavam did Yibum with a Yevamah who was pregnant and the baby died shortly after birth (giving it a status of a stillborn), the Yavam may remain married ("Yekayem") to the Yevamah. We see from this statement of the Mishnah that Yibum with a Me'uberes *is* effective. Reish Lakish responds that "Yakayem" means that the Yavam must first do another act of Yibum with her (since the first act was not a valid Yibum) and then he may remain married ("Yachzor v'Yiv'ol v'Yekayem").

It is clear from the Mishnah that if the Yavam did Yibum with the Me'uberes and the baby that was then born did not live, the Yavam and Yevamah are *not* Chayav to bring a Korban Chatas for living together -- even though at the time, they did not fulfill the Mitzvah of Yibum according to Reish Lakish. Why are they not Chayav? Since the act of Yibum was not valid, the Yavam had relations with a woman who was Asur to him because of "Eshes Ach she'Lo m'Makom Mitzvah!" They should each be Chayav to bring a Korban Chatas!

ANSWER: TOSFOS (DH Tigli) and the other Rishonim explain that even though one cannot fulfill the Mitzvah of Yibum with a Me'uberes according to Reish Lakish, nevertheless there is no Isur of "Eshes Ach." This is because, when the baby dies, it becomes clear that the woman was bound to do Yibum with the Yavam, and that obligation began from the time that her husband died.

We see from here that when a Yavam has relations with a Yevamah and that act does *not* qualify as Yibum, nevertheless it is not considered as though he had relations with an "Eshes Ach." Tosfos cites further proof for this from the Mishnah later (111b) which states that if a Yavam who is a Katan (who cannot fulfill the Mitzvah of Yibum until he grows up) lives with a Yevamah (who is a Gedolah), they may continue living together until he grows up, and then he may marry her through Yibum and fulfill the Mitzvah. Why is it not Asur for the woman to live with the Katan before he becomes an adult? We see from there that an act of having relations with a Yevamah in a manner which does not qualify as Yibum is nevertheless not considered a transgression of the Isur of "Eshes Ach."

This concept can be easily understood according to the opinion of the RASHBA (see Insights to 7:1:a, 10:1:b, 20:3:a-b) who says that at the time the woman falls to Yibum, the Isur of "Eshes Ach" is removed completely, and the woman is not Asur to the Yavam from then on. Whether or not they fulfill the Mitzvah of Yibum, relations are permitted. This is why in the case of Yibum with a Me'uberes, and in the case of a Katan doing Yibum with an adult Yevamah, there is no Isur of "Eshes Ach."

(This might be true even according to Tosfos, who equates the Mitzvah of Yibum with the concept of "Aseh Docheh Lo Sa'aseh" (see Insights to 7:1:b). That is, the Isur of Eshes Ach is removed entirely in order to do Yibum with the woman --. Once the Isur is removed for the sake of the Mitzvah, though, it is removed from the object (in this case, the woman), even when the Mitzvah is not being fulfilled. [We find a similar concept with regard to placing Sha'atnez on Tzitzis, see Tosfos Kesuvos 40a DH Kegon: since the Torah permits the Lo Ta'aseh of Sha'atnez for Tzitzis for Techeles, the Lo Ta'aseh is also permitted even where it is not necessary for the Mitzvah of Techeles, such as using Sha'atnez for the white threads]. )

However, RASHI (52a, DH Nasan Lo) writes that the reason a normal type of Kidushin (with Kesef or Shtar) cannot take effect between a Yavam and a Yevamah is because Kidushin cannot take effect with an "Eshes Ach." The Torah only permits a Yavam to do Yibum but not to marry her in the same manner that he would marry any other woman. Rashi implies that she is still Asur as an "Eshes Ach" even after she falls to Yibum. Why, then, according to Rashi, is there no obligation to bring a Korban Chatas in our case of doing Yibum with a Me'uberes, according to Reish Lakish, and why is a Katan allowed to continue living with an adult Yevamah in the case of the Mishnah later (111b)?

It seems clear from our Sugya that there is no actual Isur of "Eshes Ach" after the woman falls to Yibum but before the Yibum is performed. What, then, does Rashi mean when he says that normal Kidushin cannot take effect with a Yevamah because Kidushin does not take effect with an Isur of "Eshes Ach?"

(a) Several Acharonim explain that when we say that Kidushin does not take effect with a woman who is Asur as an Ervah, it is not necessarily because the *Isur*, the prohibition, of Ervah prevents the Kidushin from taking effect. Rather, it is because of the "*Shem*" Ervah -- the title that she has as a relative to him. Rashi (on 52a) is not saying that a Yevamah remains prohibited with an *Isur* of "Eshes Ach" before the actual Yibum is done, but that she is still considered an "Eshes Ach" (for that is the reality -- she is the wife of his brother) even though the Isur is no longer in effect and it is permitted to live with her (because the Torah permits living with one's "Eshes Ach" in the situation of doing the Mitzvah of Yibum). (KOVETZ HE'OROS 3:3-4.)

(b) The CHIDUSHIM U'VI'URIM (3:1) explains Rashi's intention differently. He says that Rashi does not mean that she is an "Eshes Ach" even *after* she falls to Yibum. Rather, Rashi means that she was an "Eshes Ach" *before* she fell to Yibum, and the Torah removed the Isur of "Eshes Ach" at the time she fell to Yibum. However, it seems logical to assume that the Torah removed it only in order for her to do Yibum; the Torah did not mean to allow him to effect a normal Kidushin with her. Therefore, we may assume that even though there no longer is an Isur of "Eshes Ach," nonetheless Kidushin cannot take effect with her because the laws of *Yibum* require that an act of Yibum be done, and preclude the possibility of acquiring her through normal Kidushin.

According to both of these explanations, Rashi and the Rashba agree with regard to the status of a Yevamah at the time she falls to Yibum; as long as she has a Chiyuv of Yibum, there is no Isur of "Eshes Ach" between the Yavam and Yevamah. Rashi and the Rashba also agree that if the Yavam does Yibum and then divorces her, we need a special verse to teach that the Heter to marry her is extended and she is not an "Eshes Ach" to the Yavam (8b). The only question is if the Mitzvah of Yibum or Chalitzah has not yet been fulfilled, and one of the brothers becomes excepted from fulfilling that Mitzvah for some reason. Do we say that the Isur of "Eshes Ach" is still removed (Rashba), or do we say that the Isur of "Eshes Ach" is reinstated and takes effect again (Rashi); this is where Rashi might disagree with the Rashba.

(c) Another approach might be that Rashi holds that if Yibum is eventually performed by the brother who lived with her prior to Yibum -- in our case, if he performs Yibum after the Me'uberes gives birth to a stillborn, or in the case later (111b), if the Katan becomes a Gadol and fulfills the Mitzvah of Yibum with his wife -- then all of the previous times he lived with her were preliminary and preparatory acts to the Mitzvah of Yibum. They are considered to have been part of the Mitzvah, and thus they do not constitute Isurim.

That might be why our Gemara insists that according to Reish Lakish, the brother who lived with a Me'uberes *must* perform Yibum after her baby turns out to be a stillborn.

(d) Rashi might hold like the RITVA here, citing from the Re'ah (or Maharam, according to one Girsa). The Ritva asks *why* Reish Lakish does not accept the seemingly obvious logic of Rebbi Yochanan, that there is a "Giluy Milsa l'Mafrei'a" that the Yevamah was obligated to do Yibum once her baby turns out to be a stillborn. We consider a stillborn not to be a child for any of the laws of the Torah, retroactively! Why is the act of Yibum that was done at that time invalid?

The RITVA gives two answers to this question. He explains in the name of the RE'AH that since at the time of the Yibum it could have been that the baby did not yet have the defect that caused it to die, therefore the act of Yibum with the woman could not have been a valid Yibum, because the woman at the time was carrying a healthy child. Even if she falls to Yibum retroactively, the act of Yibum does not become a valid Yibum retroactively, because at the time that it was done the woman was carrying a healthy child, and the defect formed only after the act was done.

The Ritva gives a second answer and says that having relations with the woman cannot be considered a valid Yibum when the Yavam cannot know (yet) for certain whether the woman is Chayav to do Yibum or not.

The difference between the two answers is whether we are *certain* that the Yibum does not take effect, according to Reish Lakish, or does Reish Lakish mean that we *cannot be certain* whether or not the Yibum took effect. If the latter is true (as the Re'ah posits), the Yavam may not be obligated to bring a Korban because there is a strong possibility that the child was *not* fully developed even at the time of Yibum (since it turns out to be a stillborn, in the end).

In the case of the Katan who performed Yibum with a Gedolah, Rashi might hold that Yibum of a Katan *does* work mid'Oraisa (if he is nine years old or older), and it is only mid'Rabanan that he has to wait to reach puberty. The Yevamah, then, is not transgressing any Mitzvah mid'Oraisa by continuing to live with him until he reaches puberty. (See TOSFOS Kidushin 19a DH umid'Oraisa, Insights to Yevamos 39a.) (M. Kornfeld)