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Yevamos, 91

1) YIBUM WITH A WOMAN TO WHOM ONE'S BROTHER WAS NEVER REALLY MARRIED

QUESTION: The Mishnah (87b) states that when a woman marries another man, thinking that her first husband died, and then her first husband returns alive, she is prohibited to both men. The Mishnah continues and says that if either the first or the second husband dies (with no children), the brother of that man must do Chalitzah and may not do Yibum.

The Gemara explains that the brother of the first husband does Chalitzah because he was the woman's real husband, and thus there is a Mitzvah d'Oraisa to do Chalitzah or Yibum. The brother cannot do Yibum, though, because the Rabanan penalized the woman and considered her to be like a Sotah mid'Rabanan (a Sotah, or a woman who was unfaithful to her husband, cannot do Yibum). The brother of the second husband performs Chalitzah only mid'Rabanan, because mid'Oraisa there is no need for Chalitzah since he was never really married to her. The Gemara here adds that the brother of the second husband does not do Yibum, "not mid'Oraisa [because she was not really married to him], and not mid'Rabanan [because the Rabanan do not allow her to marry the brother of the second husband]."

Earlier (88b-89a), the Gemara discussed why the second husband must give the woman a Get. The Gemara explained that a Get was instituted as a penalty for the woman for not checking into the matter sufficiently to make sure that her husband really was dead. As a penalty, the Rabanan applied the fear that perhaps people will say that the first husband divorced the woman and she was really married to the second husband, and thus they required that she receive a Get.

RASHI (89a, DH Kansuha, as explained by the ROSH 10:1) makes it clear that the Rabanan do not administer the penalty to require a Get unless there is logical basis for such a penalty, because people might think she was divorced from the first husband and married the second. It is the combination of the two factors which require her to receive a Get. (This is also clear from the Gemara on 95b.)

If a penalty is not issued unless it has a logical basis, why is the brother of the second husband not allowed to perform Yibum? The case under discussion is when the second husband did not divorce her, because he died before divorcing her. While the reason to penalize her (for marrying another man without first verifying that her first husband was dead) remains, that is not enough to make her prohibited to the man's brother. Some logical basis is required. The logical factor, though, (that people might say that her first husband divorced her and she was really married to the second man) does not justify prohibiting the brother of the second husband from performing Yibum. If it is true that the first husband divorced her and she married the second man, then she is *certainly* allowed to perform Yibum with the brother of the second husband! And if she was not married to the second husband (which is the truth of the matter), then she is not doing anything wrong by marrying the second husband's brother, because she was never "Eshes Achiv!" (MAHARSHA, REBBI AKIVA EIGER)

ANSWERS:

(a) The MAHARSHA suggests that when it comes to Yibum, the Rabanan administer a penalty even without a logical basis, because Yibum involves an act of Bi'ah which is "Ikar Isura," a primary act of Isur itself.

This is difficult to understand, though, because it is only called "Ikar Isura" with regard to the brother of the first husband (if she had relations with another man while married to her first husband, she is a Sotah and may not do Yibum when her husband dies). There is no "actual Isur" with regard to the brother of the second husband, where Yibum may be done (because she was never married to that man, and thus there is no Isur of "Eshes Achiv" to his brother)! (See YASHRESH YAKOV.)

(b) Perhaps here the Rabanan indeed instituted a penalty without a logical basis and prohibited the brother from doing Yibum as pure penalty. Even though they did not institute a pure penalty when it came to requiring the second husband to write a Get, they did institute such a penalty when it came to preventing the brother of the second husband from performing Yibum. The reason for this is because it is easier to institute a passive penalty, that *prohibits* an action (Yibum) than to institute an positive penalty that requires action (to write a Get). (M. Kornfeld -- the YASHRESH YAKOV offers a similar solution.)

(c) RABEINU AVRAHAM MIN HA'HAR (87b) explains that in the case of Yibum, too, the penalty is instituted because people will say that the first husband divorced her and the second husband married to her *after having committed adultery with her* while she was married to the first husband. Since the second husband committed adultery with her he is Asur to her (because a Sotah is Asurah to the man with whom she committed adultery). Just as the brother of a Sotah's *husband* may not perform Yibum, the brother of the Sotah's *adulterer* may not perform Yibum (if the adulterer marries the Sotah and then dies). The CHELKAS MECHOKEK (EH 17:150) and the RASHASH here suggest the same answer.

(Whether or not the brother of the adulterer is actually prohibited to perform Yibum is actually a question discussed at length by the Rishonim and Acharonim -- see Tosfos 3b, DH l'Fi, and Mishnah l'Melech, Hilchos Yibum 6:19).

(d) The RASHASH suggests that the Mishnah and the Gemara might mean something else entirely. When the Gemara says that the brother of the second husband "does not do Yibum mid'Rabanan," it does not mean that he is not permitted to do Yibum, but rather that he has no *Mitzvah* of Yibum. When the Gemara says "he may not do Yibum, not mid'Oraisa and not mid'Rabanan," it means that there is no *Mitzvah* for him to do Yibum, neither mid'Oraisa nor mid'Rabanan.

This means that if the brother of the second husband desires to marry her, he certainly may marry her. However, if he marries her through an act of Bi'ah b'Ones or Bi'ah b'Shogeg (situations which *would* effect Yibum, but which do *not* effect Kidushin), then she does not require a Get from him. (That is, although we find that there normally is a concern that people will say that she was really married to the second man, and they will think that Yibum does apply to her, nevertheless the Rabanan did not go so far as to require a Get in a case where the brother does Bi'as Ones or Bi'as Shogeg.)

91b

QUESTIONS: The Gemara gives two cases of a woman who is obligated to do Yibum but marries another man, thinking that Yibum was not required. In both cases, when it later turns out that Yibum *was* required, the Chachamim penalized her with all of the stringencies mentioned in the Mishnah (87b).

The first such case is when a woman whose husband died childless went and married a second husband because her Tzarah performed Yibum, and then it turned out that her Tzarah was an Aylonis. RASHI (DH v'Halchah) explains that if the Tzarah is an Aylonis, then the laws of Yibum do not apply to her, because the Torah exempts her from Yibum. As a result, Yibum must be performed with one of the other Tzaros, who are now all prohibited to remarry until one of them does Yibum or Chalitzah.

The second case is when a woman whose husband died childless went and married a second husband because her Tzarah was an Ervah to the Yavam, and we know (2a) that an Ervah exempts all of the other Tzaros from Yibum or Chalitzah. Later it was discovered that the Ervah was an Aylonis. RASHI (DH Halchu Tzaros) explains that since the Ervah was an Aylonis, her Kidushin was a Mekach Ta'us, an error, and thus she was never married to the man who died and is not a candidate at all for Yibum with his brothers. (This is true only if the deceased husband did not know at the time he married her that she was an Aylonis. If he was aware that she was an Aylonis, then the Kidushin with her does take effect.)

Rashi seems to be saying that if the Kidushin with the Ervah who was an Aylonis did take effect, then indeed the Tzaros would be exempt from Yibum and would be justified in having remarried, since they *are* Tzaros Ervah. (If this were not so, Rashi should have been consistent with his explanation of the first case, and explained that the Tzarah is not exempt even if the Ervah turns out to be an Aylonis who *was* married properly to the deceased brother.)

Rashi's comments are difficult to understand for several reasons.

(a) Earlier (12a-b), the Gemara cited two opinions whether an Aylonis exempts her Tzarah from Yibum. Rav Asi says that an Aylonis (even if she is *not* an Ervah) exempts her Tzarah from Yibum. Rava argues and says exactly the opposite: an Aylonis does not exempt her Tzarah from Yibum, even if the Aylonis *is* an Ervah.

Whose opinion is Rashi following in our Sugya? The first comment of Rashi says that when one of the Tzaros is an Aylonis, then the other Tzarah *is* obligated to do Yibum, and only the Aylonis is exempt. Rashi here is following the view of Rava who says that an Aylonis does *not* exempt her Tzaros.

The second comment of Rashi, though, seems to be following Rav Asi's opinion, for Rashi implies that an Ervah who is an Aylonis does not exempt the Tzarah only because of the Mekach Ta'us involved. Had the husband known that she was an Aylonis, the marriage would have been valid and the Ervah would have exempted the Tzarah from Yibum! (REBBI AKIVA EIGER; see also YASHRESH YAKOV.)

(b) In Gitin (80a, the source for the Mishnah quoted by our Gemara), Rashi explains in both cases that the reason why the Tzarah is not exempt from Yibum is because the marriage with the Aylonis was a Mekach Ta'us. Rashi seems to be ruling like Rav Asi, that had the Kidushin taken effect (and had not been a Mekach Ta'us), the Aylonis would have exempted the Tzaros. Rashi says this again in Yevamos (2b, DH v'Chulan sh'Meisu), where the Mishnah says that an Ervah who is an Aylonis does not exempt her Tzarah. Rashi explains that it is because her Kidushin was a Mekach Ta'us.

Why does Rashi always explain the according to opinion of Rav Asi? The Gemara (12b) states clearly that the Halachah follows the view of Rava, who says that an Aylonis does *not* exempt her Tzaros! Rashi here should have explained that even if the marriage to the Aylonis was not a Mekach Ta'us, her Tzarah is still obligated to do Yibum! (NIMUKEI YOSEF 2b, citing the RASHBA)

(REBBI AKIVA EIGER (30b) explains that Rashi on Mishnah (2b) is explaining the Mishnah according to the Gemara's original understanding, which concurs with Rav Asi's view. It is the style of Rashi to explain the Mishnah in accordance with the Gemara's initial understanding. However, this does not answer why Rashi seems to explain the Gemara according to Rav Asi in the other places.)

ANSWERS:

(a) RAV SIMCHAH M'DESVA (in his glosses, printed at the end of the Vilna editions of Yevamos) answers that perhaps Rashi understood that there was a *third* opinion in the Gemara (12b) regarding whether or not an Aylonis exempts the other wives from Yibum. After the Gemara there rules like Rava, that a Tzarah of an Aylonis is obligated to do Yibum even if the Aylonis is an Ervah, the Gemara mentions the view of Ravin that a Tzarah of an Aylonis is obligated to do Yibum. The Gemara does not add that she must do Yibum even if the Aylonis is an Ervah. Perhaps we can infer that Ravin holds that a Tzarah of an Aylonis must do Yibum only when the Aylonis is not an Ervah, but when the Aylonis is an Ervah, the Tzarah is exempt from Yibum. Rashi might be following the opinion of Ravin.

This answer is somewhat forced, because the Gemara does not imply that Rava and Ravin are arguing. This answer also does not address the second question.

(b) Perhaps we can answer both questions with the following approach.

Although the Gemara (12b) rules like Rava even in a case where the Aylonis is an Ervah, the Gemara has a good question on Rava's view. The Gemara asks that the wording of the Mishnah does not conform to Rava's explanation. The Mishnah says that an Aylonis who is an Ervah does not exempt the Tzarah if she was "*found* to be an Aylonis," implying that if the husband knew all along that she was an Aylonis, then she *does* exempt her Tzarah from Yibum. The Gemara answers that according to Rava, we must change the wording of the Mishnah from "found to be an Aylonis" to "was an Aylonis."

Because of this forced answer, Rashi learned that the Halachah does *not* follow Rava with regard to the Tzarah of an Aylonis who is an Ervah, since Rava's view in this matter is contradicted by the straightforward reading of the Mishnah. If she is an Ervah, then she exempts the Tzarah even if she is an Aylonis. Support for this ruling can be found in the words of a Tana Kama in a Beraisa earlier in Yevamos (15a).

(We could add that when the Gemara (12b) says "even if the Aylonis was an Ervah her Tzarah is obligated to do Yibum," it might not be part of the Halachic ruling that immediately precedes this statement. Rather, the Gemara is asking a question: "*Is* this the Halachah even in the case of the Tzarah of an Aylonis who is an Ervah?" Even though the Gemara does not say that the Halachah is *not* like Rava in the case of an Aylonis who is an Ervah, Rashi chose not to rule like Rava because of the question from the Mishnah which the Gemara asks there.)

According to this, Rashi in our Sugya does not contradict himself. An Aylonis does not exempt her Tzarah, even if the man knew she was an Aylonis at the time of the Kidushin. However, if she is an Ervah, then she does exempt her Tzarah from Yibum. Hence, Rashi must write that the reason she does not exempt her Tzarah is because her marriage was a Mekach Ta'us. This also explains Rashi on the Mishnah (2b) and Rashi in Gitin, where the Mishnayos are discussing an Aylonis who is an Ervah.

How, though, does this explain the second Rashi in Gitin, where he writes that the Yibum of an Aylonis who is *not* an Ervah does not exempt the other Tzaros because the marriage to the Aylonis was a Mekach Ta'us? Even without the reason of Mekach Ta'us, the Aylonis cannot perform Yibum and if she does perform Yibum, her Yibum does not exempt the Tzarah. The Tzarah must still do Yibum!

The answer might be that Rashi there is giving the reason of Mekach Ta'us simply out of convenience. That is, in Gitin, the case of the Aylonis who was an Ervah is mentioned *before* the case of the Aylonis who was not an Ervah. Since Rashi already explained the reason of Mekach Ta'us when he explained the beginning of the Mishnah, he repeats this reason in the second case. In our Gemara, where the cases are brought in the opposite order, Rashi explains that the reason in the first case -- discussing an Aylonis who is *not* an Ervah -- is because the Halachah is that an Aylonis does not exempt the Tzaros from Yibum. (M. Kornfeld)