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Yevamos, 87

1) A WOMAN WITH ONE SON WHO IS A KOHEN AND ONE SON WHO IS A YISRAEL

QUESTION: The Mishnah states that if a Bas Yisrael was married to a Kohen and they had a son, after the Kohen dies she may continue to eat Terumah by virtue of her son who is a Kohen. If she later marries a Yisrael and has a son from the Yisrael and then the Yisrael dies, her Kohen son no longer entitles her to eat Terumah.

The Mishnah continues and says that if a *Bas Kohen* married a Yisrael and had a son from the Yisrael and then the Yisrael died, she may *not* eat Terumah due to the fact that she has a son who is a Yisrael. If she later marries a Kohen and has a son from the Kohen, even if the Kohen dies she *may still eat* Terumah.

Why may the woman not eat Terumah in the first case, where she had a son from a Yisrael and a son from a Kohen, while in the second case she may eat Terumah when she has a son from a Yisrael and a son from a Kohen?

ANSWERS: The ARUCH LA'NER here offers two possible explanations.

(a) First, he says that when there are two sons -- a Kohen and a Yisrael -- their respective powers to enable or hinder the mother's right to eat Terumah cancel each other out, so to speak, and she is left with her "default" status. Thus, if the woman herself is a Bas Yisrael (first Mishnah), she has no basis for eating Terumah. If the woman is a Bas Kohen (second Mishnah), she may eat Terumah by virtue of the fact that she is a Bas Kohen.

(b) Alternatively, the Aruch la'Ner suggests that it depends on the order in which she was married to the Kohen and the Yisrael. In the first Mishnah, the woman first married a Kohen; when she later marries a Yisrael she loses her ability to eat Terumah. Since she has a son from him, she never regains the ability to eat Terumah. However, in the second case of the Mishnah, she first married a Yisrael. Later, she married a Kohen and acquired the ability to eat Terumah. Since she has a son from the Kohen, even if the Kohen himself dies she retains the ability to eat Terumah.

There are two cases that demonstrate the basic differences between these two explanations:

(1) A *Bas Kohen* married a Kohen first and *then a Yisrael* and she had sons from both. According to the first explanation, she may eat Terumah, because whenever she has children from both a Kohen and a Yisrael she goes back to the status of being a member of her father's (the Kohen's) family. According to the second explanation, she may no longer eat Terumah since she could not eat Terumah during her most recent marriage.

(2) A *Bas Yisrael* first married a Yisrael and *then a Kohen* and she had sons from both. According to the first explanation she still may not eat Terumah, since the two sons cancel each other out. According to the second reason, she will be able to eat Terumah since she was able to eat Terumah during her most recent marriage.

Is there any support for either of these two explanations of the Aruch la'Ner?

The RAMBAM (Hilchos Terumos 6:19) rules, "If a Bas Yisrael marries a Yisrael *first* and has a son from him, and then she marries a Kohen... and the Kohen died and left her with a son from him, she may eat Terumah because of the son." The Rambam clearly rules in accordance with the second reasoning; it all depends on the order of the marriages.

However, it seems that RASHI in Kerisus (7a, DH v'Einah Meshalemes) rules in accordance with the first explanation -- that the son from a Kohen (or even a live *husband* who is a Kohen) and the son from a Yisrael "cancel each other out." Rashi there writes that "if the husband (Yisrael) of a Bas Kohen dies *and then she marries a Kohen*, she may eat Terumah." Why must the daughter of a Kohen remarry to a Kohen in order to eat Terumah? Even if she is single she should be permitted to eat!. Rashi may mean that if she remarries to a Kohen, she may eat Terumah *even if* the Yisrael left her with a son. Since Rashi says that *only* a Bas Kohen may eat Terumah when she has a son from a Kohen, even though she also has a son from a Yisrael, this proves that eating Terumah depends on the woman's "default" status, and not necessarily on whom she was married to most recently. (See also Insights to Kerisus 7:1)

87b

OPINIONS: The Gemara tells us that a woman does not fall to Yibum if her husband's children die *after* her husband dies. Even though it turns out that her deceased husband is now childless, she has no obligation of Yibum because the Torah says, "Deracheha Darchei Noam" -- the ways of the Torah are ways of pleasantness, and thus a woman who was exempt from Yibum at the time of her husband's death cannot suddenly be obligated to do Yibum when the reason for her exemption is removed.

In what way would requiring her to do Yibum if all of her husband's children die be a lack of pleasantness? The Rishonim offer three explanations.

(a) RASHI here explains that if the woman is obligated to do Chalitzah after she has remarried another man, her act of Chalitzah with her first husband's brother will cause her present husband to become disgusted with her.

(One might wonder what exempts her from Yibum if she does *not* get married before her husband's son dies? The answer to this is that, according to Rashi, the principle of "Deracheha Darchei Noam" leads us to conclude that the verses that discuss the Mitzvah of Yibum apply only to a situation where the husband has no children *at the time of his death*. Consequently, even in a case where the woman does not remarry a second husband before the children die, she is nevertheless exempt from Chalitzah and Yibum, since her husband had children at the time of his death.)

(b) The RITVA here explains that it is a lack of pleasantness for a woman who remarried already to leave her husband (with a divorce) and do Yibum or Chalitzah. (Rav Aharon Yaffen, in his footnotes to the Ritva, writes that the RAMBAN and RASHBA (17b) also seem to have learned this way.)

Why, though, will she have to become divorced from her present husband? Let her Yavam perform Chalitzah while she is still married! Rav Yaffen explains that she will have to get divorced before performing Chalitzah, because her Chalitzah is not valid in a situation in which Yibum is not an option. (We find the same situation in the case of a Me'uberes (35b-36a), where since she cannot do Yibum, her Chalitzah is ineffective).

However, Rav Yaffen asks that the Gemara later (92b) seems to accept that a woman who is married *may* perform Chalitzah!

It is possible that the Ritva simply means that her husband must divorce her until Chalitzah is performed, because it is prohibited to live with a woman who is a Yevamah until she does Chalitzah. (In addition, the Yavam might want to do Yibum, and the present husband has no right to withhold from the Yavam the option of doing Yibum.)

(c) TOSFOS (2a, DH v'Achos Ishto) explains that it is not pleasant for a woman who was *permitted* to become married to another man to suddenly have the obligation of Yibum thrust upon her.

Moreover, even if the obligation of Yibum is still upon her but her Zikah to *one* of the brothers was removed (i.e., one of the brothers became invalidated from performing Yibum or Chalitzah), although she is still Zekukah to the other brothers, it is not "ways of pleasantness" for the Zikah of that brother to be reinstated (since she had assumed that she no longer had any connection to him, see Insights to 30:1).

QUESTION: The Gemara tells us that a woman does not fall to Yibum if her husband's children die *after* her husband dies. Even though it turns out that her deceased husband is now childless, she has no obligation of Yibum because the Torah says, "Deracheha Darchei Noam" -- the ways of the Torah are ways of pleasantness. Thus a woman who was exempt from Yibum at the time of her husband's death cannot suddenly be obligated to do Yibum when the reason for her exemption is removed.

RASHI explains that if the woman would have been obligated to do Chalitzah after she married another man, her act of Chalitzah with her first husband's brother will cause her present husband to become disgusted with her, and that is not "ways of pleasantness" (see (a), in previous Insight).

However, if the woman remarried before her children die, then when they die, why should there be a Chiyuv of Yibum at all? At that point, she is an Ervah to the Yavam ("Eshes Ish"), and we know that all of the Arayos are exempted from Yibum and Chalitzah from a Mah ha'Tzad or Hekesh (Gemara, 3b, and Tosfos ibid. DH Mah Achos Isha -- the Gemara in Kidushin 68a openly includes Eshes Ish" in Rebbi Yonah's "Hekesh of the Arayos"). The Halachah that an Ervah is exempt from Yibum should apply to the Ervah of "Eshes Ish" as well! (NODA B'YEHUDAH EH 2:150; see also REBBI AKIVA EIGER 16a.)

ANSWERS:

(a) The NODA B'YEHUDAH and REBBI AKIVA EIGER answer based on the words of TOSFOS (16a, DH Bnei Tzaros). Tosfos proves from the Gemara on 16a that if a woman who is a Shomeres Yavam marries someone else, the Chiyuv Yibum does not leave -- even though it does leave if she becomes an "Achos Ishah" (i.e. the Yavam marries her sister) after she falls to Yibum. Why is "Eshes Ish" different? Tosfos gives two explanations:

(1) Since the Isur of "Eshes Ish" could be rectified through the act of divorce, it is "in our hands" to remove the Isur and thus the Chiyuv of Yibum remains. In contrast, "Achos Ishah" is not "in our hands" to remove, for it can only be removed through the death of her sister, and therefore the Zikah for Yibum falls away.

(2) Second, Tosfos answers in the name of the RI that perhaps we learn from the verse, "Lo Sihyeh Eshes ha'Mes ha'Chutzah l'Ish Zar" (Devarim 25:5), that even by doing an act of Kidushin ("Sihyeh," which refers to "Havayah" or Kidushin), she does not become permitted to marry another man, but rather the Zikah for Yibum remains and she must divorce her husband and go back to the Yavam to do Yibum.

The Acharonim (ACHIEZER #2, CHAZON ISH 134:5, KOVETZ HE'OROS 4:6), though, point out that this answer would not seem sufficient. Tosfos (10a, DH l'Olam) says explicitly that an Eshes Ish *could* exempt her Tzarah from Yibum (in a case where one of the Tzaros is Asur to the Yavam because she is an Eshes Ish with regard to him, due to a Tenai in the Gerushin of a previous marriage which excluded that Yavam from the Gerushin). It is clear that Tosfos differentiates between an Eshes Ish at the time of Nefilah l'Yibum and an Eshes Ish who become such after the Nefilah. If she was an Eshes Ish at the time of the Nefilah she certainly *is* exempt from Yibum (due to the Hekesh to "Achos Ishah"). Tosfos on Daf 16a is only teaching that if she becomes an Eshes Ish *after* the Nefilah, she is not exempt from Yibum because she is an Ervah (as opposed to Achos Isha, which does become exempt from Yibum). In such a case, "Ne'esarah" will not apply to make her Asur forever (for the reason's Tosfos gives), and she can later become permitted to do Yibum (through the death of her husband or through divorce).

According to this, in our case -- where the woman is already remarried at the time that her son dies and she falls to Yibum -- the answers of Tosfos should not apply. Rather, she should be exempt from Yibum because she is an Eshes Ish! (The Noda b'Yehudah himself addresses this problem, but others refute his arguments -- see, for example, Kovetz He'oros 6:8).

(b) RAV AHARON YAFFEN discusses the Noda b'Yehudah's question at great length (Mosad Harav Kook, Milu'im 3:5, printed at the end of the first volume of the Ritva on Yevamos). He suggests that perhaps Rashi held that at the moment of the death of her husband's child, the woman falls to Yibum *retroactively* from the time of her husband's death. If Rashi holds that at the time that her son dies the woman falls to Yibum retroactively from the time of her husband's death, and not just from the time that her son dies, then her new marriage happened *after* the Zikah to do Yibum started. As such, it *is* comparable to the case discussed by Tosfos (16a), and the logic of Tosfos will suffice to explain why she is not exempt from Yibum because of her present marriage.

However, Rashi (DH v'Lo Na'aseh) does not seem to be saying that she falls to Yibum retroactively, but rather the moment at which her deceased husband has no children ("u'Ven Ein Lo") is the moment at which the Zikah begins.

(c) The CHAZON ISH (134:5) writes that if not for what Tosfos (16a) says, he would have offered another answer for why a woman's present marriage cannot exempt her from Yibum. The reason might be simple logic:

The Zikah to Yibum makes the Yevamah "acquired" to the Yavam, like a Kinyan. The Kidushin which another person does with her (which makes her an Ervah and prevents her from doing Yibum) causes her to become a Kinyan of the man who was Mekadesh her. However, it is not reasonable that he should be able to remove the Kinyan that the Yavam already has with her by creating a new Kinyan with her, through Kidushin. For this reason, it is logical for the Zikah of the Yavam to remain and not to be overridden by the new husband's Kinyan. (A logical argument is stronger than even a Hekesh; see Insights to Yevamos 3:2.)

Perhaps we may apply this logic to our case as well. Even though the Yevamah's Zikah should only start when her husband's child dies (according to the Gemara's Havah Amina that there is Zikah in such a case), nevertheless the *cause* for the Zikah would certainly be the death of her first husband. It is not appropriate for a Kinyan that she makes later, after the death of her husband, to be able to prevent her from falling to Yibum when her son dies, because the cause for her Zikah preceded that Kinyan. Even though an Eshes Ish is also an Ervah, her Ervah comes only by way of a Kinyan, and since that Kinyan would be overriding the Kinyan of Zikah which preceded it, the Ervah cannot prevent her from doing Yibum.

This logic would be justified even according to the Rashba and Ritva (2a), who (like Tosfos on *10a*) accept that possibility that the Ervah of Eshes Ish can, in theory, cause a woman and her Tzarah to become exempt from Yibum. The case in which they allow the Ervah of Eshes Ish to exempt from Yibum is one in which the Ervah of Eshes Ish *preceded* the marriage of the deceased husband (whose death caused the Zikah). That case cannot be compared to the case of our Gemara, in which the Ervah of Eshes Ish *followed* the death of the deceased husband.

Tosfos (16a), who does not accept this reasoning and gives different reasons why the Ervah of Eshes Ish (which occurs after a woman falls to Yibum) does not exempt a woman from Yibum, is following his own reasoning elsewhere, for he gives a different explanation of the exemption of "Deracheha Darchei Noam" (see previous Insight), which has nothing to do with Zikah persisting after a woman becomes married to somebody else.