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Yevamos, 36

36b

QUESTION: Rebbi Eliezer maintains that in a case where the Yavam did Yibum with a pregnant Yevamah, and she then gave birth to a child who did not live, the Yavam must divorce her by giving her a Get ("Yotzi b'Get"). He maintains that the Chachamim penalized the Yavam for doing Yibum with the Yevamah before he found out whether or not she was really Chayav to do Yibum.

Rashi explains that Rebbi Eliezer emphasizes that he must divorce her *with a Get* ("Yotzi *b'Get*"), when he could have simply said "Yotzi" alone, because he wants to teach us that since, retroactively, the Yibum was a valid Yibum (because she ended up being obligated to do Yibum), it suffices to give a Get and he does not have to do Chalitzah with her.

This supports the opinion of Rebbi Yochanan, who says that when Yibum was done with a pregnant Yevamah, the Yibum is valid. How, though, will Reish Lakish explain the opinion of Rebbi Eliezer? According to Reish Lakish, the act of Yibum that was done with an pregnant Yevamah was not a valid Yibum, so why does it suffice to give her a Get without doing Chalitzah with her? She still has an obligation of Yibum or Chalitzah in order to become permitted to marry others!

ANSWERS:

(a) TOSFOS YESHANIM and the RASHBA (and MAHARSHA) explain that when Rebbi Eliezer says "Yotzi b'Get," he means that the Yavam must give her a Get *and* Chalitzah. Rebbi Eliezer's Chidush, according to Reish Lakish, is that a Get is also necessary, as a penalty. (Indeed, the Rashba's text of the Gemara reads "Yotzi b'Get *u'v'Chalitzah*.")

However, Rashi does not appear to be learning the Gemara that way. He is learning that the Yavam divorces the Yevamah with a Get alone, and not with Chalitzah.

(b) TOSFOS YESHANIM, in his second answer, and TOSFOS HA'ROSH in the name of MAHARAM, answer based on the Gemara earlier. The Gemara (35b) said that according to Reish Lakish, when the Mishnah states "Yekayem" (in a case where the Yavam did an act of Yibum, and then the Yevamah later gave birth to a stillborn), it means "Yachzor v'Yiv'ol v'Yekayem" -- the Yavam must first do another act of Yibum, since the first act he did was not a valid Yibum. Accordingly, when Rebbi Eliezer here says that the Yavam must divorce her with a Get, he means that he must first do another act of Yibum with her (since the first act was not a valid Yibum), and then he must divorce her as a penalty for doing Yibum before he knew that she was obligated to do Yibum. He cannot do Chalitzah with her, because he already had relations with her.

According to this explanation, why did Rebbi Eliezer say "Yotzi *b'Get*," when it would have sufficed to say simply "Yotzi?" The answer is that by saying "Yotzi b'Get," he is emphasizing this very point -- even though he must divorce her, he must first do an act of Yibum with her and acquire her completely, and then he must divorce her with a Get.