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Yevamos, 84

1) A WOMAN WHO IS PROHIBITED TO HER HUSBAND BUT PERMITTED TO HER YAVAM

QUESTION: The Mishnah lists women who are permitted to their husbands but prohibited to their Yevamim, and those who are prohibited to their husbands but permitted to their Yevamim. An example of a case of a woman who is prohibited to her husband but permitted to the Yavam (her husband's brother) is a case of a Yisrael who married a Mamzeres, and that Yisrael's brother is a Mamzer. The Yisrael's wife is prohibited to him, but she is permitted to his brother when she falls to Yibum.

In the beginning of the Masechta (11b), the Gemara discussed a case of Machzir Gerushaso, in which the woman's husband dies and she falls to Yibum. The Gemara established a Kal v'Chomer that she remains Asur to her husband's brother and may not do Yibum (and perhaps her Tzarah may also not do Yibum): since the woman is Asur to her husband to whom she was once permitted, then certainly she is Asur to her husband's brother, to whom she was always Asur (when there was no Chiyuv of Yibum) because of Eshes Ach.

Why does the Gemara here not apply that Kal v'Chomer? The Kal v'Chomer should tell us that in a case of a Yisrael who is married to a Mamzeres, even if his brother is a Mamzer (and is permitted to marry a Mamzeres), that brother should be Asur to do Yibum with the Mamzeres!

ANSWER: The Gemara in Sotah (6a) asks this question. It explains that the Kal v'Chomer applies only when the wife becomes Asur to her husband *after* they were married (like the Girsa of the BACH (#2) on Daf 11b). When she was Asur to him before the marriage, though, there is no reason for the brother of the man that she will marry to be more Asur to her than the man she will marry, and therefore the brother does not become Asur to marry her through the above Kal v'Chomer. There is no reason for the Isur to the man she will marry to affect her status to his brother.

The Gemara, though, mentions a case of a Patzu'a Dakah, where the husband becomes a Patzu'a Dakah and, after he dies, his wife is permitted to do Yibum with his brother. What is the Halachah if he becomes a Patzu'a Dakah *after* he becomes married to her? The Gemara implies that all cases of Patzu'a Dakah are the same, and the wife will be permitted to the brother. Why does the Kal v'Chomer not apply to prohibit her to his brother?

(a) TOSFOS (84b, DH Shiyer Patzu'a Dakah) explains that the Kal v'Chomer can only make her Asur to the Yavam if something that happened to *her* caused the Isur (for example, she was a Sotah, or a Machzir Gerushaso). If something happened to her *husband* to create the Isur between them, then the Kal v'Chomer will not make her Asur to the brother, because it is not *she* who is becoming Asur to the husband (all the more so to his brother), but it is the husband who is becoming Asur to her.

(b) RASHI (Sotah 6a, DH Leika Isura) seems to explain that the Kal v'Chomer could only make her Asur according to the opinion that holds that "Nisu'in Rishonim Mapilin," the marriage between the deceased husband and the woman is what extends to the Yavam and is what causes the Yibum. Since there is an Isur at the time of the marriage, the brother cannot do Yibum because the marriage from which it stems was one of Isur. But according to the view that does not hold of "Nisu'in Rishonim Mapilin," then the Kal v'Chomer might not apply in the first place.

QUESTION: The Gemara explains that when it comes to Yibum, the Mitzvas Aseh of Yibum is not Docheh a Lo Ta'aseh. RASHI (v'Ha Kulei) says that this is learned from the verse, "v'Alsah Yevimto ha'She'arah" (Devarim 25:7). However, the Gemara concludes (20b) that it is *not* learned from any verse, but that it is only an Isur d'Rabanan that prohibits doing Yibum when there is a Lo Ta'aseh (it is a Gezeirah of "Bi'ah Rishonah Atu Bi'ah Sheniyah"). (RASHBA, RITVA, REBBI AKIVA EIGER in Gilyon ha'Shas, Sanhedrin 53a)

ANSWER: Rashi maintains that although the Gemara earlier (20b and 61a) does conclude that it is d'Rabanan, many other Sugyos clearly indicate that the reason the Aseh of Yibum is not Docheh a Lo Ta'aseh is because in a situation of Yibum, it is possible to avoid doing Yibum (and transgressing the Lo Ta'aseh) since the Yavam can do Chalitzah instead ("Efshar b'Chalitzah"). (See what we wrote at length concerning this in Insights to Yevamos 20:1 and 4.)

However, this does not fully explain the words of Rashi here. Rashi does not write that the reason Yibum is not Docheh a Lo Ta'aseh is because it is possible to do Chalitzah. Rashi says that the reason is because of the verse which the Gemara earlier cited only as a Havah Amina!

The answer to this might be that Rashi found proof in the Gemara here that this Sugya must have understood (at this point in the Gemara) that the reason the Aseh of Yibum is not Docheh a Lo Ta'aseh is because of the verse mentioned in the Havah Amina of the Gemara earlier. Rashi inferred this from the fact that our Gemara mentions the logic that our Mishnah might be of the opinion that "Nisu'in Rishonim Mapilin," and as a result of that, if the Yevamah was permitted to the Yavam at the time she married the Yavam's brother, then he may do Yibum with her even if she has become Asur to him with an Isur Lav by the time of Yibum (for example, if the Yavam is a Kohen Gadol, and the woman becomes an Almanah when her husband dies).

TOSFOS asks how our Gemara could suggest that the logic of "Nisu'in Rishonim Mapilin" is a reason to be *lenient*. We only find that "Nisu'in Rishonim Mapilin" tells us that if she was Asur at any time during the Nisu'in, she *remains Asur* at the time of Yibum. But we never find that it is cause for a leniency -- that if she was *Mutar* at the time of the marriage, then she should be Mutar now, at the time of Yibum!

Rashi was bothered by this question. If the reason why Yibum is not done with a woman who is prohibited to the Yavam because of an Isur Lav is because it is possible to do Chalitzah instead, then there should be no reason whatsoever to be lenient just because the Nisu'in (that caused the Yibum) took effect before the Isur -- it is still "Efshar b'Chalitzah!" Similarly, if the reason that Yibum is not done in a case of an Isur Lav is because of a Gezeirah d'Rabanan of "Bi'ah Rishonah Atu Bi'ah Sheniyah," that Gezeirah still applies in this case!

Rashi says that our Gemara understands that the Isur to do Yibum in the case of an Isur Lav is because of the verse, "v'Alsah Yevimto ha'She'arah." This verse teaches that there are "some" women who do not do Yibum even though they should; the Gemara establishes that these women are those who are Asur to their Yevamim because of Isurei Lavim. If this verse is the only source to exclude some women from Yibum, perhaps it applies only to Isurei Lavim where the Isur Lav *preceded* the Nisu'in. Where the Isur Lav came *after* the Nisu'in, perhaps the verse does not apply, and the Mitzvah of Yibum overrides the Isur of the Lav! That is why the Gemara had a Havah Amina that if she became Asur after the Nisu'in, she would be Mutar to the Yavam. (Based on the KEREN ORAH)

84b