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Yevamos, 54

1) WHY A MAN CANNOT DO YIBUM WHILE ASLEEP

QUESTION: The Gemara says that if a Yavam has relations with his Yevamah while he is sleeping, he is not Koneh the Yevamah and has not fulfilled the Mitzvah. RASHI (DH Yashen Lo Kanah) explains that "a sleeping person is not a Bar Da'as (he has no Da'as) and his Kinyan is not a valid Kinyan."

Why is this a reason for a sleeping person not to be Koneh the Yevamah? We know that there are other forms of Bi'ah where the Yavam does not have in mind to be Koneh her, and yet the Yibum is still valid. For example, when a man does a Bi'ah of Shogeg, or a Bi'ah of Ones, he does not have in mind to be Koneh her, and yet is still Koneh her!

Second, a Katan does not have Da'as to be Koneh her, and yet when he does Yibum he is Koneh the Yevamah (mid'Oraisa, according to Rashi and some Rishonim; see Insights to 39:2 -- even if he is not Koneh mid'Oraisa, it is only because the Torah specifically excludes him from Yibum, and not because he lacks Da'as )! (TOSFOS DH Yashen, and RASHBA)

ANSWERS:

(a) The RITVA answers that Bi'as Shogeg and Bi'as Ones are inherently different from a sleeping person. In the cases of Bi'as Shogeg and Ones, the Yavam is capable of Da'as, of having conscious intention, at the moment of the act, but he just does not have in mind to be Koneh her. One who is sleeping, on the other hand, is not capable of having Da'as altogether. (That is what Rashi is emphasizing when he adds the words, "and his Kinyan is not a valid Kinyan" -- he is not capable of making a Kinyan at the moment that he is sleeping.)

How, though, does a Yashen differ from a Katan? A Katan is also not capable of making a Kinyan, and yet we see that he is nevertheless Koneh a Yevamah! The Acharonim (see YA'AVETZ) answer that a Katan might not be able to make a Kinyan, but he certainly does have conscious thought processes, which can even have Halachic ramifications (see Chulin 13b). The ARUCH LA'NER adds that there are times when a Katan can even make a Kinyan (see TOSFOS in Sanhedrin 69b). Therefore, a Katan is not comparable to a sleeping person, who is incapable of making any sort of Kinyan.

(b) TOSFOS (DH Yashen) and other Rishonim do not accept Rashi's reasoning. They write that a sleeping person cannot be Koneh his Yevamah for a different reason. The Gemara says (later on this Amud) that even though a person does not need Da'as to be Koneh a Yevamah, he does have to have Kavanah to do an act of Bi'ah. A person who is sleeping has no Kavanah to do an act of Bi'ah at all. A Katan, though, could have Kavanah to do Bi'ah, even though he does not have Da'as (i.e. willful *decision* to make a Kinyan).

(Rashi might disagree with this contention, and maintain that even one who is sleeping is capable of Kavanah to do Bi'ah, see Nidah 43a.)

QUESTION: The Gemara derives from several phrases in the verse (Devarim 25:5) that a person is Koneh his Yevamah with various types of Bi'os -- such as Shogeg or Mezid, Ones or Ratzon, k'Darkah or sh'Lo k'Darkah. The phrase, "Yevamah Yavo Aleha" teaches that the act of Yibum works whether it is done b'Shogeg or b'Mezid, and whether it is done b'Ones or b'Ratzon. The phrase "u'Lekachah" teaches that he is Koneh the Yevamah even with an act of Lo k'Darkah.

The Gemara asks that there is a Beraisa that says that the phrase "Yevamah Yavo Aleha" teaches that Bi'ah k'Darkah is Koneh, and if so, how can that phrase teach that he is Koneh the Yevamah whether b'Shogeg or b'Mezid?

What is the Gemara asking? If the verse is teaching that he is Koneh her with Bi'ah both b'Shogeg and b'Mezid, then obviously it is teaching that he is Koneh her with Bi'ah k'Darkah! Why would we have thought that it is referring to any other type of Bi'ah, other than k'Darkah?

ANSWER: The RASHBA answers that the Gemara means to ask that we cannot derive Shogeg and Mezid, nor k'Darkah and sh'Lo k'Darkah, until we have a verse teaching us that he is Koneh her with a normal Bi'ah k'Darkah. Once we have a verse telling us how Yibum is to be done in the first place (i.e. with Bi'ah), then the next verse can tell us that this Bi'ah works when done in different ways, such as b'Shogeg, and she'Lo k'Darkah.

The Gemara's question is that the phrase "Yevamah Yavo Aleha" is the first verse, which teaches us how the Mitzvah of Yibum must be done to begin with (with Bi'ah). How, then, asks the Gemara, can we learn from the same phrase that Bi'ah b'Shogeg also works? We will have to learn that from a different verse, such as from "u'Lekachah," but then we will not have a third verse available to teach us that he is Koneh her with Bi'ah she'Lo k'Darkah!

The Gemara answers that there *is* a third verse -- "l'Hakim l'Achiv Shem." That verse teaches that Yibum is accomplished through Bi'ah (k'Darkah), and from the other two verses we learn that additional forms of Bi'ah (b'Shogeg, and she'Lo k'Darkah) also accomplish Yibum.

54b