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Yevamos, 44

1) DOING YIBUM AND CHALITZAH WITH THE TWO WIVES OF ONE'S DECEASED BROTHER

QUESTION: The Mishnah (43b) says that when a man dies childless and leaves behind two wives, his brother does Yibum or Chalitzah with one of the wives and thereby exempts the other wife as well. The Gemara asks why should he not do Chalitzah with the second woman after doing Yibum with the first? The Gemara answers that we know that he cannot do Yibum with the second woman, because we learn from a verse (Devarim 25:9) that "one may build only one house, and not two" ("Bayis Echad Hu Boneh"). Since a second Yibum cannot be done with the second woman, Chalitzah also cannot be done, because of the principle "Kol sh'Ein Oleh l'Yibum, Ein Oleh l'Chalitzah" -- if Yibum cannot be done, then Chalitzah is also not done.

The Gemara adds "furthermore, we do not want people to say that half of the brother's house is being built, and have is doing Chalitzah." The Gemara asks what difference does it make if people say that, and it answers that people might think, when they see the Yavam do Yibum with the first woman and Chalitzah with the second, that it is permitted to do it in any order, and they will permit doing Chalitzah first and then Yibum (which is prohibited because "Keivan she'Lo Banah, Shuv Lo Yivneh").

Why does the Gemara add this second reason? The first reason explains why the *Torah* does not require that Chalitzah be done with the second woman. The Derashah of "Bayis Echad Hu Boneh," and the principle of "Kol sh'Ein Oleh l'Yibum," are mid'Oraisa. Thus, mid'Oraisa he does not need to do Chalitzah with the second woman. Why, then, does the Gemara add a second reason which is only mid'Rabanan, a Gezeirah to prevent people from confusing the order and permitting Yibum after Chalitzah? If Chalitzah is not needed mid'Oraisa, why is there a need to say that it is not done mid'Rabanan? Moreover, if there was some assumption that there *is* a Chiyuv d'Oraisa to do Chalitzah with the second woman, how can the Rabanan prohibit doing Chalitzah, thereby permitting a Yevamah to remarry without releasing herself from the obligation of Yibum?

ANSWERS:

(a) TOSFOS (DH v'Od) omits the second reason the Gemara gives, and his text includes only the reason why Chalitzah is not done mid'Oraisa. However, the Rishonim cite the RIF and RABEINU CHANANEL who do have this Girsa.

(b) The RAMBAN and RASHBA explain that the Gemara is saying as follows. Even though we have found a reason in the Torah not to do Chalitzah with the second woman, nevertheless the Rabanan should have made a Takanah to do Chalitzah with her, so that people not think that a Yevamah may remarry without being released from her obligation of Yibum, when they are not aware that her Tzarah already did Yibum. The Gemara answers that the Rabanan carefully weighed the implications of such a Takanah, and they reasoned that if the second woman is required (mid'Rabanan) to do Chalitzah, then it might lead to an even bigger problem -- people might think that it is permitted to do Chalitzah first and then do Yibum. Therefore, they did not make a Takanah to do Chalitzah with the second wife.

(c) The RITVA explains that the Gemara is not just giving a reason why there is no obligation to do Chalitzah with the second woman after doing Yibum with the first. The Gemara is telling us that it is *forbidden* to do Chalitzah with the second woman. The Gemara is saying that since the principle of "Kol sh'Ein Oleh l'Yibum, Ein Oleh l'Chalitzah" teaches that there is no obligation to do Chalitzah, that must also mean that it is *prohibited* to do Chalitzah. It is logical that wherever the Torah did not obligate one to do Chalitzah, it *prohibited* doing Chalitzah, because doing Chalitzah involves an excessive disgrace to the parties involved. The Gemara then says that even if that is not reason enough to say that Chalitzah is Asur mid'Oraisa, it would still be Asur mid'Rabanan to do Chalitzah because of the concern that people might permit doing Chalitzah first and then Yibum.

44b