QUESTION: If a woman's husband and Tzarah travel together abroad and the
woman finds out that her husband died, she cannot do Yibum even though her
husband did not have any known children, because she must consider the
possibility that her Tzarah bore children to her husband while they were
abroad. On the other hand, she is not permitted to remarry, because her
Tzarah might not have had any children, in which case she is obligated to do
Yibum.
The Gemara asks that we should allow her to get married, because "most
married women become pregnant and have children." We should follow the Rov
and assume that the Tzarah probably did have a child and we should permit the
woman to remarry.
The Gemara answers that the Mishnah follows the opinion of Rebbi Meir, who
holds that we must be stringent and take into account the less likely
possibility ("Chosheshim l'Mi'ut"). In this case, we must be Choshesh
l'Chumra that the Tzarah did not have a child (for the Chazakah that she did
not have a child until now supports that Mi'ut).
In the end of the previous Perek, the Mishnah (118b) discusses a man (who had
no children) and his wife who travelled together abroad. The Mishnah says
that if the woman returns and says that she gave birth to a child abroad but
the child died before the husband died, she is believed (and must do Yibum)
because of the Chazakah that until now she was obligated to do Yibum since
she did not have any children. Even though she admits that she did have a
child and she cannot prove that the child died before the husband died, she
is believed that the child died before the husband because of a "Migu"; she
could have said nothing, and then she would have been obligated to do Yibum
because of the Chazakah (RASHI DH Meis Ba'ali, and RITVA). If she says that
the child died *after* her husband died (and she should be exempt from
Yibum), then she is *not* believed, because she is contradicting the Chazakah
that says she is obligated to do Yibum.
Why should the Chazakah that she did not have children before she departed be
the deciding factor in proving that she should be obligated to do Yibum?
There is a Rov that tells us that she probably became pregnant and had a
child, and thus the Rov contradicts the Chazakah!
According to the Rabanan (who are not concerned for the Mi'ut), when the
woman says nothing, we should follow the Rov and permit her to marry anyone
(without first doing Yibum)! According to Rebbi Meir, she should be
"Choletzes v'Lo Misyabemes" -- she must do Chalitzah and not Yibum, because
according to Rebbi Meir we are "Chosheshim l'Mi'ut" and we take into account
the minor possibility that she did not have children. Even if she says that
she had a child abroad and the child died before her husband died, the same
Halachah should apply -- "Choletzes v'Lo Misyabemes!" (TOSFOS REBBI AKIVA
EIGER, Yevamos 15:125)
ANSWER: The RAMBAN and RASHBA address this question. They explain that in the
case where the woman and her husband went abroad without a child and she
returned without a child, all Tana'im agree that the Rov does not overpower
the Chazakah, since -- besides the Chazakah that she had no children before
she left -- there is also the fact that she is also returning without a child
(and we have no evidence that there ever was a child). That is, there are two
Chazakos -- one Chazakah that she had no children before she left, and
another Chazakah that she had no children when she returned. These two
Chazakos overpower the Rov that says that she had a child abroad. That is why
we assume that she does not have a child and she must do Yibum or Chalitzah.
Therefore, if she says that she had a child and the child died before the
husband, she is believed with a Migu because she could have been quiet and
been obligated to do Yibum anyway.
In our Gemara, though, which discusses the case of the woman's *Tzarah* who
went abroad (and not the woman herself), the Tzarah never returned. As such,
the Rov can teach us that she probably *did* have a child, since there is no
Chazakah that tells us that upon her return she had no children.
QUESTION: How do we explain the case where the woman returns from abroad and
testifies that "I bore a son abroad, and my husband died before my son died?"
Why in that case is she not believed? She should be believed because of the
Rov that says that she probably did have a child while away! Even though she
says that the child died, she has a Migu that she could have said that she
had a child and the child is still alive! (If she would make such a claim she
would certainly be believed, because her testimony is supported by the Rov.)
The simple answer would be that the Mishnah there is following the opinion of
Rebbi Meir, like our Mishnah, and is ruling that the Rov does not override
the Chazakah because we are Choshesh for the Mi'ut. Therefore she must be
"Choletzes v'Lo Misyabemes."
However, TOSFOS (DH Amai) challenges this answer. If the Mishnah at the end
of the previous Perek must follow the opinion of Rebbi Meir, then why did the
Gemara wait until this Mishnah to prove that the Mishnah was authored by
Rebbi Meir? The Gemara should have discussed it earlier!
ANSWERS:
(a) TOSFOS answers that the previous Mishnah is not following the opinion of
Rebbi Meir. Rather, it is discussing a case where there are *witnesses* who
testify to the death of the woman's child but who do not know who died first,
her child or her husband. Their testimony removes her Migu because she can no
longer say that her child is still alive in order to be exempt from Yibum,
and that is why she would not be permitted to remarry even according to the
Rabanan who normally follow the Rov; she has no Migu to say that the child is
still alive.
The MAHARSHA is perplexed by this answer. If we are discussing a case where
there are witnesses who testify that she had a son and the son died, then she
has a Chazakah that she is exempt from Yibum because she had a son!
Therefore, if she says that her son died before her husband she should not be
believed and allowed to do Yibum. To the contrary, she should have a Chazakah
that she is *prohibited* to the Yavam! (See ARUCH LA'NER, KARNEI RE'EM.)
The KEREN ORAH answers that Tosfos means to apply the logic of the Ramban and
the Rashba even when witnesses come and say that there was a child but the
child died. Since she left without a child, and now when she returns, the
witnesses who say that she had a child admit that she no longer has a child,
then we follow the original Chazakah that she was obligated to do Yibum. Even
though later there was a point in time at which she had a child, since we
only find out about the child at the same time that we find out that the
child died, the Chazakah that she had no child and was obligated to do Yibum
remains. Just like the Rov does not present a reason not to apply the
Chazakah, the testimony of the witnesses that she had a child does not give
us enough reason to reject the Chazakah, since right now she does not have a
child. When she says that the child died after her husband, she is not
believed with a Migu that she could have said that the child is still alive,
because witnesses testified that the child died.
Why does she not have a Migu that she could have said that she had twins, and
the second child is still alive? Perhaps the answer is that she does not have
such a Migu because she did not expect witnesses to testify that her child
died, and that is why she did not testify that she had twins. Alternatively,
a Migu alone is not strong enough to counter the Chazakah that she is
obligated to do Yibum. (Only a "Peh sh'Asur," or a "Migu d'Iy Ba'i Shasik" --
a Migu that she could have said nothing -- is strong enough to counter the
Chazakah. She is believed if she could have left out something but she said
it anyhow, but she is not believed just because she could have said a
stronger claim than what she actually claimed.)
(b) The answer of Tosfos is disputed by other Rishonim. The RAMBAN explains
that the woman who went abroad with her husband has a Chazakah that she is
obligated to do Yibum, not only because she left and came back without
children, but also "because we never heard that she had children." According
to the Ramban, it seems that if witnesses testify that she had a child while
abroad, then even though they also say that the child died, the woman no
longer has a Chazakah that she is obligated to do Yibum. (It is interesting
to note that the Rashba, when he quotes the Ramban here, omits these words).
However, if she has no Chazakah that she must do Yibum, then our question
returns: why is she not believed when she returns from abroad and testifies
"I bore a son abroad, and my husband died before my son died?" She should be
believed because of a Migu that she could have said that she had a son and
her son is still alive (in which case we would believe her because of the
Rov)!
The answer is that it seems that the Ramban indeed learned that the Mishnah
at the end of the previous Perek follows the opinion of Rebbi Meir, who says
that we do not rely on the Rov that the woman bore a child abroad. Therefore,
even if the woman says that she had a child abroad, she is *not* believed,
because the Rov that supports her claim is unable to counter the Chazakah
that she is obligated to do Yibum.
Why did the Gemara there not point out the fact that Rebbi Meir authored that
Mishnah? Perhaps because it was obvious that the Mishnah at the end of the
previous Perek follows the opinion of Rebbi Meir. Our Mishnah, though, it is
not so obviously authored by Rebbi Meir, since the Seifa contradicts the
Reisha if it is following the view of Rebbi Meir (as the Gemara points out).
QUESTION: The Gemara concludes that if a woman's husband and Tzarah travelled
abroad and she does not know whether the Tzarah bore a child, she is
prohibited to remarry until she verifies whether the Tzarah had a child.
The Gemara asks why we do not allow her to do Chalitzah and then remarry, as
doing Chalitzah will solve her problem no matter what: if her Tzarah had a
child, then she did not need Chalitzah, and if her Tzarah did not have a
child, then the Chalitzah permits her to remarry. The Gemara answers that we
cannot let her do Chalitzah because if we discover later that the Tzarah did
have a child, then we will have to announce that the woman's Chalitzah was
not a valid Chalitzah and that she is actually permitted to marry a Kohen.
However, publicizing through a public announcement that the Chalitzah was not
valid is not an efficient enough way of spreading the word. There might be
someone who does not hear the announcement, and when he sees this woman
marrying a Kohen he will mistakenly assume that it is permitted for a
Chalutzah to marry a Kohen. Therefore, we do not allow the woman to do
Chalitzah in the first place.
Why, though, must we prohibit her from marrying forever because of this
reason (until she finds out whether her Tzarah had a child)? The Chachamim
should have allowed her to do Chalitzah! If it turns out later that she did
*not* need Chalitzah, the Chachamim should have simply prohibited her from
marrying a Kohen despite the fact that the Chalitzah was not valid, instead
of making a public announcement that the Chalitzah was not necessary. That
way, at least she would be permitted to do Chalitzah now and marry a non-
Kohen!
ANSWERS:
(a) The PERISHAH (on the Tur EH 156:29) and the HAGAHOS TOFOS YOM TOV (ibid.)
answer that if we were to permit the woman to do Chalitzah and to marry
anyone except a Kohen, then when the woman later discovers that her Tzarah
gave birth and she really did not need Chalitzah, she will *think* that she
is permitted to marry a Kohen despite what she was told at the time she did
Chalitzah. Even though we told her that she is prohibited from marrying a
Kohen forever after this Chalitzah, she will think that she was prohibited to
a Kohen only because of the possibility that the Chalitzah was valid. She
will not understand why she should be prohibited to a Kohen when it becomes
known that the Chalitzah was completely unnecessary.
Therefore, the only acceptable course of action is *not* to allow her to do
Chalitzah, and not to marry at all until she finds out whether her Tzarah had
a child. Such a ruling she will accept. It will seem logical to her that she
cannot do Chalitzah as long as she does not know whether or not her husband
had children.
(b) We could add to this answer and explain as follows. If we were to permit
her to do Chalitzah and then prohibit her to a Kohen even when it turns out
that her Tzarah had a child and the Chalitzah was meaningless, people will
wonder why the Chalitzah was valid enough to prohibit her to a Kohen. They
will reach the incorrect conclusion that the Chalitzah must have been done
while the Tzarah was pregnant, before the child was born, and that is why it
was valid.
This, in turn, will lead people to conclude that when a man dies and his wife
is pregnant, her Chalitzah or Yibum is valid even if the son lives and is
born a healthy child, since he was not born before the death of his father.
The Halachah actually is that such is not a valid Chalitzah, and Yibum is
prohibited in such a case with an Isur Kares (35b). That is why the Chachamim
did not want to let her do Chalitzah now and prohibit her to a Kohen when her
Tzarah returns with a child. (M. Kornfeld)