Sunday, June 17, 2007

TECHNICAL DIFFICULTY - Yevamos 44 - Daf Yomi

The Gemora states: Whoever is subject to yibum is subject to chalitzah and whoever is not subject to yibum is not subject to chalitzah.

Tosfos asks: The halacha is that if the yavam or yevamah are deaf, they cannot perform chalitzah, but nonetheless are obligated to perform yibum. Shouldn’t we say that one who is not subject to chalitzah should not be subject for yibum either?

Tosfos answers: They in fact are fit for yibum; there is just a technical difficulty that chalitzah cannot be performed. In such cases, the principle does not apply.

Divrei Chaim (E”H I, 100) explains similarly regarding a yevamah who falls for yibum to a lame yavam. He cannot perform chalitzah, but nonetheless, there is an obligation for him to perform yibum. This is because there is no prohibition against performing a chalitzah, but rather, he is merely not fit to perform a yibum. In these cases, the principle does not apply.

Magen Avraham (O”C 39:5) cites our Tosfos and therefore rules that one whose left hand was cut off, and therefore cannot put tefillin on, is nevertheless qualified to write tefillin. Although we have a principle that whoever is included in the obligation of putting on tefillin is qualified to write tefillin, and one who is not obligated to wear tefillin cannot write tefillin; this person is permitted to write tefillin. He is included in the mitzvah; there is just a technical difficulty that he cannot wear tefillin.

Chikrei Leiv (E”H 46) comments that although most men do not have the capabilities to write their own get, they are nevertheless allowed to appoint an agent to write the get for them. Although there exists a principle that you cannot appoint an agent to perform something for you if you cannot do it yourself, that is only applicable where you are halachically disqualified from performing that task. Every person is halachically fit to write a get; he is just missing the expertise to accomplish it. This will not disqualify him from appointing an agent to write it on his behalf.

Sheorim Mitzuyanim B’halacha

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3 comments:

Reb Avi said...

R' Akiva Eiger (Mishnah Sanhedrin chapt. 2 os 7) asks that a king is considered not eligible for chalitzah since it is against the kavod hamelech for her to spit in front of him, and she is therefore exempt even from yibum. Why it this so, it should be similar to a deaf/mute who is eligible just unable to perform?

Reb Avi said...

R' Elchonon (5:5) suggest that we only consider the situation eligible but impossible - 'pumei ka'iv lei" when it could technically change, but an issur to spit in front of a king will always be there and is considered not eligible. This answer is difficult bec. the point is that the inability to perform chalitzah is an external factor both by the deaf/mute and by the king.

Reb Avi said...

R' Moshe (Igros E.H. 1:158) gives a very clear answer, he assumes that we look at it from the perspective of the mitzvah. So, a deaf/mute has a mitzvah of chalitzah just that he is unable to perform it, so he is still obligated in the mitzvah of yibum. But a king has not mitzvah of chalitzah since it is assur to perform it, therefore he is not eligible for yibum and since there is no mitzvah of yibum or chalitzah, there is no zika.