PARTIAL COHABITATION - Yevamos 56 - Daf Yomi

The Gemora Kiddushin (10a) inquires: When does a man inquire his wife; with the beginning of cohabitation or at the conclusion? The Gemora comments that this inquiry would affect the following case: If a man began cohabiting with a woman in order to marry her, and prior to the conclusion of cohabitation, she stretched out her hand and accepted money for kiddushin from another man. Is she married to the man who began the cohabitation or is she married to the fellow who gave her the money? Another case would be dependent on this inquiry. Can a Kohen Gadol effect kiddushin with a virgin through cohabitation? If he only acquires her at the conclusion of cohabitation, he would be prohibited from concluding. A Kohen Gadol is obligated to marry a virgin; this woman has lost her virginity (at the onset of cohabitation) prior to becoming his wife. The Gemora concludes: One who cohabits has in mind the conclusion of cohabitation, and therefore he does not acquire her until the conclusion.

The Ritva writes: A yavam acquires his yevamah at the beginning of cohabitation. This is because we have learned that a yavam does not require intent to acquire his wife; even if he would proclaim that he has no intention of acquiring her until the conclusion, he would acquire her at the onset of cohabitation.

The Ritva proves this: The Gemora above (20a) states: If a woman falls for yibum before a Kohen Gadol, she submits to chalitzah and not yibum. The Gemora infers that this halacha is applicable whether she falls for yibum from a state of erusin or nisuin. The Gemora asks: It is understandable why he can’t perform a yibum if she falls for yibum from a state of nisuin; there is a positive commandment to marry a virgin besides for the negative prohibition against marrying a widow. The positive commandment of yibum cannot override both commandments. However, if she falls for yibum from a state of erusin, there is merely a negative prohibition against marrying a widow; why don’t we say that the positive commandment of yibum should override this prohibition and we should permit the Kohen Gadol to perform a yibum? (The Gemora answers that there is a Rabbinical decree prohibiting this.)

The Ritva writes: If a yavam acquires the yevamah only at the conclusion of cohabitation, what is the Gemora’s question? As soon as he begins cohabitation, she has lost her virginity, and she is not considered his wife yet. How would he be permitted to conclude cohabiting; this would be transgressing two prohibitions, and the mitzvah of yibum cannot override two commandments? It is evident that the yavam acquires her at the beginning of cohabitation.

The Avnei Miluim asks the following question: Rav and Shmuel argue concerning an unintentional cohabitation of a yavam; regarding which matters does he acquire the yevamah? The halacha is in accordance to the second version in our Gemora, which states the following: Others say: There is no argument in a case where she fell for yibum from a state of erusin; everyone would agree that she may not eat terumah since she was not able to eat terumah when she was married to the first husband. Accordingly, what did the Ritva gain by stating that a yavam acquires his yevamah by the beginning of cohabitation since we do not require his intention; in a case where she falls for yibum from a state of erusin, an inferior cohabitation does not effect acquisition to render her a nesuah; she is only regarded as an arusah, and that is why she cannot eat terumah. If so, the Ritva’s original question returns; how can the Kohen Gadol perform a yibum on his yevamah from a state of erusin? As soon as he begins cohabitation, she loses her virginity, and he does not acquire her yet; how can he conclude cohabiting when he is transgressing two commandments?

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Daf Yomi - Yevamos 56 - Highlights

The Mishna had stated: If a man cohabited with his yevamah, whether in error or wantonly (not for the sake of the mitzvah), whether under compulsion or willingly; even if he acted in error and she wantonly, he wantonly and she in error, he under compulsion and she not under compulsion, she under compulsion and he not compulsion; whether he has partial cohabitation or he completes cohabitation, he has acquired her.

The Gemora presents a dispute regarding these acts of cohabitation that were not performed with the intent of acquisition. Rav maintains that the yavam acquires her for all matters (if the yavam is a Kohen, she may eat terumah). Shmuel holds that he acquires her only for those matters specifically mentioned in the Torah; he inherits the property of his brother, and she is released from any yibum obligations. (However, she may not eat terumah yet.)

The Gemora qualifies the argument. If she fell for yibum from a state of nisuin, everyone would agree that she may eat terumah now because she was eating terumah when she was married to the first husband. (This inferior yibum renders her a complete nesuah.) They argue only when she fell for yibum from a state of erusin; Rav maintains that she may eat terumah since the Torah equates an unintentional cohabitation with an intentional one. (She is considered his complete wife regarding all matters.) Shmuel holds that an unintentional cohabitation is included to give her the same status as the deceased husband, but the yavam’s relationship with her will not become superior than that of the deceased (unless he performs a proper yibum). (56a)

The Gemora asks on Shmuel from the following braisa: If a mentally competent woman becomes betrothed to a mentally competent Kohen, but he becomes a deaf-mute before he was able to marry her (nisuin), she may not eat terumah. (Rabbinically, an arusah is prohibited from eating terumah, and a deaf-mute cannot effect nisuin.) If he died and she fell for yibum to a deaf-mute yavam, she is permitted to eat terumah. This is a case where the strength of the yavam is superior to that of the husband.

The Gemora asks: According to Shmuel, who states that an inferior yibum does not allow a yevamah to eat terumah, how can the yibum of the deaf-mute (where he is obviously not intending to acquire her as a yevamah) allow her to eat terumah?

The Gemora answers: Shmuel could interpret the braisa to mean as follows: If he married her with nisuin, and afterwards became a deaf-mute, she is still permitted to eat terumah. If he subsequently dies childless, and she fell for yibum before a deaf-mute yavam, and he performs a yibum, she is permitted to eat terumah. This is a case where the strength of the yavam is superior to that of the husband since a deaf-mute’s nisuin will not permit her to eat terumah, but a deaf-mute’s yibum will permit her to eat terumah. (56a)

The Gemora presents a different explanation in the dispute between Rav and Shmuel (regarding an unintentional yibum). Others say: There is no argument in a case where she fell for yibum from a state of erusin; everyone would agree that she may not eat terumah since she was not able to eat terumah when she was married to the first husband. The dispute is only in a case where she fell for yibum from a state of nisuin. Rav maintains that she may eat terumah since she was eating terumah when she was married to the first husband. Shmuel holds that she may not eat terumah because the Torah includes an unintentional cohabitation as if it was intentional only regarding those matters specifically mentioned in the Torah; he inherits the property of his brother, and she is released from any yibum obligations. Regarding all other matters, it is not considered an act of yibum. (she may not eat terumah yet).

The Gemora asks: Rav Nachman said in the name of Shmuel that wherever a husband permits his wife to eat terumah, the yavam also permits her to eat (even in a case of an inferior yibum)?

The Gemora answers: Shmuel meant in this ruling that a type of cohabitation where a husband would entitle his wife to eat terumah with (with intention for nisuin), a yavam will also entitle the yevamah through it; however, a type of cohabitation where a husband would not entitle his wife to eat terumah with (when there was no intention for nisuin), a yavam will also not entitle the yevamah through it.

The Gemora asks on Shmuel from the following braisa: If a mentally competent woman becomes betrothed to a mentally competent Kohen, but he becomes a deaf-mute before he was able to marry her (nisuin), she may not eat terumah. (Rabbinically, an arusah is prohibited from eating terumah, and a deaf-mute cannot effect nisuin.) If he died and she fell for yibum to a deaf-mute yavam, she is permitted to eat terumah. This is a case where the strength of the yavam is superior to that of the husband.

The Gemora explains: Rav would be able to interpret the braisa in the same manner as we interpreted above according to Shmuel (If he married her with nisuin, and afterwards became a deaf-mute, she is still permitted to eat terumah. If he subsequently dies childless, and she fell for yibum before a deaf-mute yavam, and he performs a yibum, she is permitted to eat terumah. This is a case where the strength of the yavam is superior to that of the husband since a deaf-mute’s nisuin will not permit her to eat terumah, but a deaf-mute’s yibum will permit her to eat terumah.). However, this braisa is in direct conflict with Shmuel’s opinion (for Shmuel holds that a yibum without proper intent will never permit her to eat terumah).

The Gemora remains with this difficulty. (56a)

The Gemora cites a braisa: If a mentally competent woman becomes betrothed to a mentally competent Kohen, but he becomes a deaf-mute before he was able to marry her (nisuin), she may not eat terumah. If she gave birth to a child (from this deaf-mute Kohen), she is entitled to eat terumah (on account of her son, who is a Kohen). If the son died, Rabbi Nosson says that she can continue to eat terumah and the Chachamim disagree.

The Gemora asks: What is Rabbi Nosson’s logic?

Rabbah answers: Since she was able to eat beforehand, the permission continues.

Abaye asks: If so, a daughter of a Yisroel that marries a Kohen who died without children, she should still be permitted to eat terumah since she was able to eat beforehand (when she was married to the Kohen)? The answer is: Since her husband died, she loses the sanctity of his Kehunah; so too, when the son died, she should lose the sanctity of his Kehunah?

Rav Yosef answers: The nisuin of a deaf-mute Kohen does entitle her to eat terumah. (Biblically, an arusah is allowed to eat terumah; the Rabbis issued a decree against it because she is still in her father’s house and she might share the terumah with her non-Kohen siblings; this concern is not applicable by a deaf-mute’s nisuin for although she is still legally an arusah, but she is living in the Kohen’s house, and not by her father.) The Rabbis did not issue a decree regarding the nisuin of a deaf-mute out of concern that we will become confused with the case of an erusin of a deaf-mute.

Abaye asks: If this is correct, why does the braisa state that she had a child from the Kohen, and that entitles her to eat terumah; she should be able to eat terumah on account of the nisuin?

Rav Yosef answered: This was only said because of the Chachamim’s opinion (who disagree with Rabbi Nosson regarding the nisuin; they agree if she would have a son from the Kohen). (56a)

The Mishna had stated: So, too, if a man cohabits with any of the arayos listed in the Torah etc.

Rav Amram said: Rav Sheishes told us the following matter, and he enlightened our eyes from our Mishna. He said: If the wife of a Yisroel was violated, even though she is permitted to her husband, she becomes disqualified from the Kehunah. And this can be supported from the Tanna of our Mishna. He said: So, too, if a man cohabits with any of the arayos listed in the Torah, or with those that are disqualified from the Kehunah. What is the Mishna referring to when it says, “So too”? Isn’t the Mishna referring to where one cohabited with one of the arayos, whether in error or wantonly, whether under compulsion or willingly? And the Mishna continued: In any of the above cases, he disqualifies her from the Kehunah. (Since a married woman is one of the arayos mentioned in the Torah, and the Mishna teaches us that one who cohabits with her, she is disqualified from the Kehunah even though it was against her consent.

The Gemora rejects this proof: Perhaps the Mishna is only referring to the halacha of partial cohabitation; this applies to all of the arayos. Thus, there would be no proof that a married woman, who has been violated, becomes disqualified to the Kehunah.

The Gemora asks: According to this interpretation of the Mishna, we are deriving the halacha of partial cohabitation by all arayos from the mitzvah of yibum. As a matter of fact, it is precisely the opposite; partial cohabitation is valid by yibum because we compare yibum to the arayos. It is by the arayos that we originally learned that a partial cohabitation is regarded as a complete one.

The Gemora concludes: The Mishna, when it says, “So too,” can be referring to cohabitation in an unnatural manner regarding those women that are forbidden only by a negative prohibition. (56a – 56b)

Rabbah rules: If the wife of a Kohen has been violated, and her husband cohabits with her, he incurs lashes because she is a zonah (a woman who went astray and committed adultery).

The Gemora asks: Will he only incur lashes on account of cohabiting with a zonah? Shouldn’t he be liable to lashes on account of tumah as well (she has been defiled, and therefore forbidden to her husband)?

The Gemora answers: Let us say that Rabbah meant that he will also incur lashes on account of cohabiting with a zonah (besides the halacha of tumah).

The Gemora cites an alternative version of Rabbah’s ruling: If the wife of a Kohen has been violated, and her husband cohabits with her, he incurs lashes because of tumah.

The Gemora infers that he will not receive lashes because she is a zonah. (56b)

[END]

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CUT OFF WITHOUT CHILDREN - Yevamos 55 - Daf Yomi

Rashi’s opinion is that kares includes two punishments: He will die before his time, and he will die childless.

Tosfos (2a) cites the opinion of the Riva that only where the Torah explicitly uses the term “aririm” will the second punishment apply; otherwise, he will die young, but with children. Tosfos does conclude that all arayos will entail both punishments because they are comparable to each other.

The Ramban writes that the second punishment will not be applicable by other transgressions, such as eating blood or forbidden fats.

The Netziv cites a Yerushalmi that maintains that only by those specific arayos which state “aririm” does the second punishment apply; otherwise, he will die young, but with children.

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Daf Yomi - Yevamos 55 - Highlights

The Gemora cites a Mishna: They told a married man, “Your wife has died,” and he went and married her paternal sister. Later, they told him, “She (the second wife) has died,” and he went and married her (the second wife) maternal sister. Later, they told him, “She (the third wife) has died,” and he went and married her (the third wife’s) paternal sister. Later, they told him, “She (the fourth wife) has died,” and he went and married her (the fourth wife’s) maternal sister. He found out that in fact, none of them had died. The halacha is that he is permitted to remain married to the first, third and fifth wives. (Since he is legally married to the first wife, that renders his marriage to the second wife (her paternal sister) null and void. He is thus legally married to the third wife because she is not related at all to the first wife. Now that he is legally married to the third wife, that renders his marriage to the fourth wife (her paternal sister) null and void. He is thus legally married to the fifth wife because she is not related at all to the first or the third wives.) If he would subsequently die childless, a yibum or chalitzah with one of these wives will release the others from any yibum or chalitzah obligations. He is forbidden to the second and the fourth wives, and a yibum or chalitzah with one of them will not release the others from a yibum or chalitzah obligation.

The Mishna continues: If the husband cohabited with the second wife after the death of the first one (she indeed did die), he is permitted to remain married to the second and fourth wives. (Since he is legally married to the second wife, that renders his marriage to the third wife (her maternal sister) null and void. He is thus legally married to the fourth wife because she is not related at all to the second wife. Now that he is legally married to the fourth wife, that renders his marriage to the fifth wife (her maternal sister) null and void.) If he would subsequently die childless, a yibum or chalitzah with one of these wives will release the other from any yibum or chalitzah obligations. He is forbidden to the first, third and fifth wives, and a yibum or chalitzah with one of them will not release the others from a yibum or chalitzah obligation.

Implicit in this Mishna is that one is prohibited from taking his wife’s sister, whether she is a paternal or maternal sister.

The Gemora asks: How do we know that one’s maternal sister is prohibited?

The Gemora answers: It can be derived from the prohibition of a sister. Just as one is prohibited from taking his sister, whether she is a paternal or maternal sister, so too, one is prohibited from taking his wife’s sister, she is a paternal or maternal sister.

The Gemora asks: Let us derive from the prohibition regarding one’s father’s brother’s wife? Just as there, the prohibition is only applicable if the husband and the brother are paternal brothers and not maternal, so too, regarding the prohibition of one’s wife’s sister; she should only be forbidden if she is the wife’s paternal sister?

The Gemora answers: It is more logical to derive the halacha pertaining to a wife’s sister from one’s own sister because she is his own relative (a father’s brother’s wife is not regarded as his own relative).

The Gemora asks: It would be preferable to derive the halacha of a wife’s sister from the prohibition regarding one father’s brother’s wife because they are both related through marriage (in contrast to one’s sister, where no marriage is involved).

The Gemora concludes: We derive this halacha from the prohibition regarding one’s brother’s wife. (This prohibition is applicable whether the husband and the brother are paternal or maternal brothers.) They are comparable because they are related through marriage and are one’s own relatives. (54b – 55a)

The Gemora asks: How do we know that one’s brother’s wife is prohibited, whether the husband and the brother are paternal or maternal brothers?

The Gemora cites a braisa which discusses this precise issue. It is written [Vayikra 18:16]: The ervah of your brother’s wife you shall not uncover. This verse prohibits one from taking his brother’s wife, whether the husband and the brother are paternal or maternal brothers.

The braisa asks: Perhaps the prohibition is only applicable if they are paternal brothers?

The braisa presents the source for both options. We could derive this halacha from the prohibition regarding one’s sister. Just as one is prohibited from taking his sister, whether she is a paternal or maternal sister, so too, one is prohibited from taking his brother’s wife, whether the husband and the brother are paternal or maternal brothers.

Or perhaps, we can derive this halacha from the prohibition regarding one’s father’s brother’s wife. Just as there, the prohibition is only applicable if the husband and the brother are paternal brothers and not maternal, so too, regarding the prohibition of one’s brother’s wife; she should only be forbidden if the husband and the brother are paternal brothers.

The braisa states the reasons as to which prohibition is more comparable to the prohibition regarding one’s brother’s wife. A brother’s wife is his own relative, and his sister is his own relative; one’s father’s brother’s wife is not his own relative. However, there is a counterargument: A brother’s wife is a prohibition which involves a marriage, and a father’s brother’s wife also involves a marriage; one’s sister is a prohibition that occurs automatically, not because of any marriage.

The braisa concludes by citing the end of the aforementioned verse: She is the ervah of your brother. These words (because they are superfluous) teach us that one is prohibited from taking his brother’s wife, whether the husband and the brother are paternal or maternal brothers.

The Gemora asks: Perhaps one verse is necessary to teach us the prohibition regarding a case where the brother has children, and it is during his lifetime, and the other verse teaches us that the prohibition exists in a case where he has children, and it is after her husband died?

The Gemora answers: It is unnecessary to teach us that the brother’s wife is forbidden in a case where he has children, and the husband died. Since the Torah explicitly permits a brother’s wife when the brother died childless, we can infer that she would be forbidden if he did have children.

The Gemora counters: Perhaps we can say that if he died childless, she is forbidden to marry anyone else, but is permitted to the yavam; however, if he died with children, she would be permitted to everyone? Alternatively, we can say: If he died childless, there is a mitzvah to marry her; if he died with children, it would be voluntary? Alternatively, we can say: If he died childless, he is permitted to marry her; if he died with children, there would be a positive commandment against marrying her (but she would not be subject to the penalty of kares)?

The Gemora answers: There is actually a third verse, which is certainly extra. It is written [Vayikra 20:21]: He has uncovered his brother’s ervah. These words (because they are superfluous) teach us that one is prohibited from taking his brother’s wife, whether the husband and the brother are paternal or maternal brothers. (55a)

The Gemora cites a Scriptural verse which indicates that although a brother’s wife is prohibited whether the husband and the brother are paternal or maternal brothers, the mitzvah of yibum is applicable only if they are paternal brothers, not maternal brothers. (55a)

The Gemora asks: Why does the Torah mention kares regarding the prohibition of cohabitating with one’s sister (all arayos are subject to the penalty of kares)?

The Gemora answers: It is to teach us the halacha of Rabbi Yochanan. Rabbi Yochanan states: If one committed all the arayos transgression (mistakenly thinking that she was permitted to him) during one lapse of awareness, he is liable to bring a korban chatas for each and every transgression. (55a)

The Gemora asks: Why does the Torah mention that one will die childless if he cohabited with his father’s brother’s wife; the Torah has already stated that regarding all arayos?

The Gemora answers: It is necessary for Rabbah’s teaching. Rabbah states that one verse teaches us that if one has children, and he has committed one of these transgressions; he will be forced to bury his children. The other verse teaches us that if he does not have children, he will continue to live in that state, and he will eventually die without ever having children. The Gemora comments: This applies to children born prior to transgressing as well as to those that were born afterwards. (55a)

The Gemora cites the Scriptural source which indicates that a partial cohabitation is prohibited by a negative prohibition, by a negative prohibition involving the Kehunah and by a positive commandment. The Gemora also cites the source which indicates that a yavam will acquire his yevamah and a man will acquire his wife through partial cohabitation. (55a – 55b)

Rava asks: Why does the Torah mention the words a copulation of seed (a complete cohabitation) regarding a designated slavewoman (a Canaanite slavewoman betrothed to a Hebrew slave is forbidden to cohabit with a regular Jew) regarding a married woman, and regarding a sotah (an adulteress)?

Rava answers: The words a copulation of seed regarding a designated slavewoman is necessary for the ruling we stated above (namely, that one is not liable to bring a korban asham until he cohabits completely with her).

The words a copulation of seed regarding a married woman teaches us that one is not liable for cohabitating with a corpse of a married woman. This is necessary, for we might have thought that since she is still regarded as the husband’s relative (regarding a kohen becoming tamei to his wife), it might be considered adultery; the Torah teaches us that this is not the case.

The words a copulation of seed regarding a sotah teaches us that one who warns his wife not to engage in bodily contact with another man does not render her a sotah. This is necessary, for we might have thought that becoming a sotah is dependent on the objection of the husband, and since he is is obviously objecting to this behavior, perhaps she would be rendered a sotah; the Torah teaches us that this is not the case. (55b)

The Gemora cites different opinions regarding what is considered the beginning of cohabitation. One opinion maintains that even genital contact constitutes partial cohabitation. Others hold that the insertion of the corona is considered the beginning of cohabitation. (55b – 56a)

[END]

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MITZVAH WITHOUT INTENTION - Yevamos 54 - Daf Yomi

The Mishna teaches us that even if the yavam did not have intention for the mitzvah he has nevertheless acquired the yevamah.

The Minchas Chinuch writes that by a Biblical mitzvah, one is required to perform the mitzvah with the intention for the sake of the mitzvah. If the yavam cohabited with the yevamah under the assumption that she was another woman, or he acted wantonly, and did not intend for the mitzvah, he has indeed acquired her, but he has not fulfilled the mitzvah.

The Minchas Chinuch concludes that the yavam will have to cohabit with her again for the sake of the mitzvah in order to fulfill the mitzvah.

Reb Elchonon Wasserman disagrees and holds that intention is a requirement for the fulfillment of a mitzvah only when the mitzvah is to perform a certain action. However, if the mitzvah is to create a chalos, a certain condition, the mitzvah can be fulfilled even without the proper intention. The mitzvah of yibum is to acquire the yevamah; this mitzvah is accomplished even if the yavam did not intend to fulfill the mitzvah.

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Daf Yomi - Yevamos 54 - Highlights

The Mishna states: If a man cohabited with his yevamah, whether in error or wantonly (not for the sake of the mitzvah), whether under compulsion or willingly; even if he acted in error and she wantonly, he wantonly and she in error, he under compulsion and she not under compulsion, she under compulsion and he not compulsion; whether he has partial cohabitation or he completes cohabitation, he has acquired her. And there is no distinction between one manner of cohabitation and other manners of cohabitation (natural or unnatural).

The Mishna continues: So, too, if a man cohabits with any of the arayos listed in the Torah, or with those women who are disqualified to marry a Kohen, such as a widow to a High Priest, a divorcee or a chalutzah to a regular Kohen, a mamzeres or a nesinah to an Israelite, the daughter of an Israelite to a mamzer or to a nasin, he has rendered her disqualified from the Kehunah. And there is no distinction between one manner of cohabitation and other manners of cohabitation. (53b)

The Mishna had stated: If a man cohabited with his yevamah, whether in error or intentionally, whether under compulsion or willingly; even if he acted in error and she intentionally, etc.

The Gemora asks: What is the meaning of the word “even”?

The Gemora answers: It isn’t necessary to state the obvious ruling where he acted in error and she intended to fulfill the mitzvah, or he is wanton and she intended to fulfill the mitzvah because at least one of them was intending to fulfill the mitzvah. Rather, the Mishna teaches us that even in the case where he acted in error (thinking that she was another woman) and she is wanton, meaning that they both were not intending for the mitzvah, nevertheless, he acquires her as a wife.

Rabbi Chiya taught in a braisa: Even if they were both in error, both were wanton, or both of them acted under compulsion, the yibum is valid. (53b)

The Gemora asks: What is the meaning when the Mishna says that they acted “under compulsion”?

If you will say that the Mishna is referring to a case where idolaters forced him to cohabit with her, but Rava said that there is no legal claim of coercion regarding an illicit cohabitation because one cannot have an erection unless he is a willing participant.

Rather, the Mishna can be referring to a case where he cohabited with her while he was sleeping. The Gemora asks: Rav Yehudah has said that one cannot acquire a yevamah while he is asleep (since at that time, he is lacking sufficient intelligence to make a kinyan).

Rather, the Mishna can be referring to a case where he cohabited with her accidentally. The Gemora asks: Rabbah has said that if one falls from a roof and cohabits with a woman below (he was on the roof with a woman and was erect), he will be liable to pay for four things (damages, pain, medical bills and loss of income), but he would not acquire his yevamah (since he is not contemplating cohabitation at all).

Rather, the Mishna can be referring to a case where he was intending to cohabit with his wife, and his yevamah grabbed him and he cohabited with her.

The Gemora asks: What is Rabbi Chiya’s case where they both acted under compulsion?

The Gemora answers: He is referring to a case where the yavam intended to cohabit with his wife, and idolaters grabbed him and forced him to cohabit with his yevamah. (53b – 54a)

The Gemora asks: From where are the halachos listed in the Mishna derived?

The Gemora cites a braisa: It is written: Her yavam shall cohabit with her. This teaches us that it is preferable for the yavam to perform yibum (and not chalitzah). Another thing: This verse teaches us that yibum is effective if he cohabits with her, whether in error or wantonly, whether under compulsion or willingly. (54a)

The Gemora cites another braisa: It is written: Her yavam shall cohabit with her. This teaches us that cohabitation in a normal manner effects yibum. The verse continues: And take her. This teaches us that cohabitation in an unusual manner (anal) does not effect yibum. The verse continues: And perform yibum. This teaches us that only cohabitation finalizes the yibum, but giving her money or a document will not finalize the yibum. The words in the verse (And perform yibum) with her teaches us that yibum is valid even without her consent. (54a)

Rav Yehudah said: One cannot acquire a yevamah while he is asleep. The verse states: Her yavam shall cohabit with her. This teaches us that he must intend to cohabit with her in order for the yibum to be valid.

The Gemora asks: It was taught in a braisa otherwise: A yibum is valid whether he was awake or asleep during cohabitation.

The Gemora emends the braisa: A yibum is valid whether she was awake or asleep during cohabitation.

The Gemora cites a different braisa to challenge Rav Yehudah’s opinion: A yibum is valid whether he was awake or asleep, or whether she was awake or asleep during cohabitation.

The Gemora answers: The braisa is referring to a case where the yavam was simply dozing. Rav Yehudah was discussing a case where he was sleeping.

The Gemora asks: What does dozing mean? Rav Ashi clarifies the case. He is asleep and not asleep, awake and not awake; if he is called he responds, but he cannot give a rational answer, though if he is reminded, he remembers. (54a)

Rabbah has said that if one falls from a roof and cohabits with a woman below (he was on the roof with a woman and was erect), he will be liable to pay for four things, but he would not acquire his yevamah.

He will be liable to pay for damages, pain, medical bills and loss of income, but he would not be liable to pay for the embarrassment until he intended to cause an injury. (54a)

Rava said: If the yavam intended to press against a wall, but instead cohabited with his yevamah, he has not acquired her. If he intended to press against an animal, but instead cohabited with his yevamah, he has acquired her because he was intending to perform a type of cohabitation. (54a)

The Mishna had stated: If the yavam performed partial cohabitation with his yevamah, he has acquired her. Ula cites the Scriptural source for this. It is derived from a verse regarding a niddah (menstruant).

The Gemora asks: We cannot learn to other cases of arayos because niddah has a stringency that one who cohabits with a niddah becomes tamei just like the niddah.

The Gemora answers: It can be derived from the verse discussing the prohibition of a brother’s wife which concludes with the words, She is a niddah.

The Gemora asks: We cannot compare the prohibition of a brother’s wife to other arayos; one can marry a thousand wives and will increase the number of forbidden women. We would only be able to learn to other arayos that become forbidden through marriage.

The Gemora answers: It can be derived from the verse discussing the prohibition of one’s father’s sister and mother’s sister which states explicitly that a partial cohabitation is forbidden.

The Gemora asks: We cannot compare the prohibition of a father’s sister to other arayos; she is forbidden automatically without any act of marriage. We would only be able to learn to other arayos that become forbidden automatically.

The Gemora concludes: We cannot derive from one of those sources, but perhaps we can learn from two of them.

The Gemora analyzes as to which two sources we can learn from. Let us derive the halacha (of partial cohabitation) from the prohibition of a brother’s wife together with the prohibition of one’s father’s sister and one’s mother’s sister.

The Gemora asks: We cannot learn to other cases of arayos because these are forbidden on account of being relatives; we would not be able to learn to other arayos, which are not related to the cohabiter.

The Gemora says: Let us derive the halacha from a niddah together with the prohibition of one’s father’s sister and mother’s sister.

The Gemora asks: We cannot learn to other cases of arayos because these are forbidden automatically without any act of marriage. We would only be able to learn to other arayos that become forbidden automatically.

The Gemora says: Let us derive the halacha from a niddah together with the prohibition of one’s brother’s wife, for there is nothing to ask on this.

Rav Acha the son of Rav Ikka asks: One cannot compare these prohibitions to the other arayos. Niddah and a brother’s wife are not permitted during the entire lifetime of that which prohibits them; we cannot derive other arayos, such as a married woman (who can be permitted during the lifetime of that which prohibits her, if the husband divorced her) from them.

Rav Acha from Difti rewords the question: Niddah and a brother’s wife are different; that which prohibits them cannot permit them (a niddah becomes permitted after a certain amount of days, and a brother’s wife could become permitted if the brother died childless). However, by a married woman, that which prohibits her can permit her (therefore she cannot be compared to the others)

The Gemora concludes: Rabbi Yonah, and others say that it was Rav Huna son of Rabbi Yehoshua, said: It is written [Vayikra 18:29]: For if anyone commits any of these abominations, the persons doing so will be cut off. We compare all arayos with a hekesh (a Midrashic juxtaposition, where we can derive from there even when there exists distinctions) to a niddah; just as a niddah is forbidden even with a partial cohabitation, so too, all arayos are forbidden even with a partial cohabitation. (54a – 54b)

The Gemora asks: Why does it say niddah by the prohibition of a brother’s wife?

The Gemora answers: It is needed for Rav Huna’s teaching. One might think that a brother is permitted to marry his brother’s wife even while the brother is alive (he divorced his wife), or that it would be prohibited, but she would not be subject to the penalty of kares; the extra words in the verse teaches us that if there is no mitzvah of yibum, she is forbidden as a brother’s wife under the penalty of kares. This is derived from the fact that the Torah writes the word niddah by the brother’s wife prohibition. Just as a niddah is permitted afterwards, but nonetheless, if one would cohabit with her while she is a niddah, they would be subject to the penalty of kares, so too, regarding a brother’s wife, even though she could be permitted if the brother died childless, she is forbidden under the penalty of kares when the mitzvah of yibum is not applicable. (54b)

Ravina inquired of Rava: What is the halacha if a man partially cohabits with another man?

The Gemora answers: This is certainly forbidden because this prohibition is compared to the copulation of a woman; just as there partial cohabitation is forbidden, so too, regarding a male.

The Gemora states that Ravina’s inquiry was regarding a partial cohabitation with an animal.

Rava answered that it is forbidden. (54b)


[END]

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Daf Yomi - Yevamos 53 - Highlights

The Mishna had stated: If he married this one by ma'amar, and that one by ma'amar, they require two bills of divorce and chalitzah.

The Gemora states that this seemingly would be inconsistent with Ben Azzai’s opinion. Ben Azzai maintains that there is validity for a ma’amar after another ma’amar in a case where there were two yevamim and they both performed ma’amar with one yevamah. However, if one yavam performed ma’amar with one yevamah, and then he performed ma’amar with a second yevamah, the second one has no validity (and therefore there would be no necessity for a get to the second one). (53a)

The Mishna had stated: If he married this one by ma'amar, and he submitted to chalitzah from the other one, the first requires a bill of divorce.

The Gemora states that we can infer from the Mishna that when he perform a ma’amar with one, it is proper to submit to chalitzah from the other one; for a chalitzah from the ma’amar recipient will not release the co-wife (since it does not sever the ma’amar attachment). This implication would support Shmuel, for Shmuel had stated: If a yavam performs a ma’amar with one of the widows and then he decides to release her, she needs a get and a chalitzah. If the yavam performs a chalitzah with the woman who received the ma’amar, the co-wife is not released. If he performs a chalitzah with the co-wife, the woman who received the ma’amar is released.

This would be a refutation to Rav Yosef, who maintains that one should always perform a chalitzah with the woman who is anyway disqualified for the Kehunah. (Rebbe taught that a person should not spill out the extra waters from his pit when others may have a need for it. If he is performing chalitzah anyway, which will render her forbidden to a Kohen, he should perform the chalitzah with the widow who is anyway disqualified to marry a Kohen.) (In our Mishna, he should submit to chalitzah from the ma’amar recipient, who will anyway require a get.)

The Gemora answers: The Mishna does not instruct him what to do; rather, the Mishna is discussing that case. Perhaps, he should have submitted to chalitzah from the ma’amar recipient, since she will be receiving a get to sever the ma’amar attachment. (53a)

The Mishna had stated: If he gave a bill of divorce to this one, and a bill of divorce to the other one, they require from him chalitzah. The Mishna continued: These halachos apply whether one yavam to two yevamos, or two yevamim to one yevamah.

The Gemora states that this would support Rabbah bar Rav Huna’s opinion. He states: Whenever there is a deficient chalitzah, each brother must submit to chalitzah from that yevamah. (Three sisters who are sisters-in-law (they were married to three brothers) who fall for yibum before two brothers, one brother performs chalitzah to one of them, the other brother performs chalitzah to a different one of them, and the middle one (the other sister) requires chalitzah from both of them.)

The Gemora deflects the proof: Our Mishna does not mean that they both perform chalitzah; rather it (the plural form) means that that Yevamos in general would require a chalitzah in this case (but only from one brother). (53a)

The Mishna had stated: If he submitted to chalitzah and he married her by ma’amar, there is no validity to anything which follows chalitzah, and the ma’amar is not effective. The Mishna continued: These halachos apply whether one yavam to two yevamos, or two yevamim to one yevamah. The implication would be that if one yavam submitted to chalitzah and performed ma’amar with her co-wife, or if the yavam submitted to chalitzah and his brother performed ma’amar with her, there is no validity to anything which follows chalitzah, and the ma’amar is not effective.

The Gemora above (10b) presented a dispute between Rabbi Yochanan and Rish Lakish. (A man performed a chalitzah with his yevamah and then married her; Rish Lakish said that he is not liable for kares for marrying the chalutzah (the one with whom the chalitzah was performed), but the brothers will be liable to kares for taking her. He (the one who performed the chalitzah) and his brothers will be liable to kares for taking the co-wife. Rabbi Yochanan says: Both he and the brothers will not be liable to kares for taking the chalutzah or her co-wife.)

The Gemora asks: It is understandable why the Mishna mentioned these halachos according to Rabbi Yochanan; although he holds that (after chalitzah) the entire house is only subject to a negative prohibition, nevertheless, kiddushin does not take effect with her (and the Mishna would be following Rabbi Akiva’s opinion that kiddushin does not take effect with a woman subject to a negative prohibition). However, what is the novelty of these rulings according to Rish Lakish? He maintains that (after chalitzah) the entire house is subject to a penalty of kares; does the Mishna need to teach us that kiddushin does not take effect with women subject to a penalty of kares?

The Gemora defends Rish Lakish’s position, and asks: Is it any better according to your reasoning? The Mishna had stated: If he cohabited with her and he married by ma’amar, there is no validity for the ma’amar. The Mishna continued: These halachos apply whether one yavam to two yevamos, or two yevamim to one yevamah. The implication would be that if one yavam cohabited with her and a second yavam performed ma’amar with her, the ma’amar will not be valid. What is the necessity of this ruling? Does the Mishna need to teach us that kiddushin does not take effect with a married woman?

The Gemora concludes: It is obvious that this is the explanation of the Mishna. The Mishna taught all the halachos pertaining to releasing one yavam and one yevamah, and then it taught us the halachos pertaining to two yevamos and one yavam. Since we mentioned the halachos regarding two yevamos and one yavam, the Mishna also mentioned the halachos regarding two yevamin and one yavam. (53a)

The Mishna had stated: There is no validity to anything that follows chalitzah. This would apply whether he submitted to chalitzah at the beginning, or in the middle, or at the end. However, regarding cohabitation, when it is at the beginning, there is no validity for anything which follows it, whereas if it was in the middle, or at the end -- there is validity to something which follows it. Rabbi Nechemia said: It is all one, cohabitation and chalitzah, whether at the beginning, or in the middle, or at the end, there is no validity for anything which follows it.

The Gemora cites a dissenting opinion from a braisa: Abba Yosi son of Yochanan, a man from Yerushalayim said in the name of Rabbi Meir: It is all one, cohabitation and chalitzah; if it is done in the beginning, there is no validity for anything which follows it. However, if it is done in the middle (a get preceded it, and ma’amar followed it) or in the end (following a get and ma’amar), there is validity for that which follows it.

The Gemora states all the opinion: There are three viewpoints. The Tanna Kamma of our Mishna maintains that there is a distinction between cohabitation and chalitzah. If one cohabits (in the middle or at the end), there is reason to decree that something which follows should have validity, for we are concerned that people might say: Just as cohabitation following a ma’amar effects acquisition, so too, cohabitation after cohabitation should acquire her. And just as cohabitation after a get effects acquisition, so too, cohabitation after chalitzah should acquire her. It was for this reason that the Rabbis decreed that cohabitation does not acquire her. However, regarding chalitzah which is performed between get and ma’amar or afterwards, there is no reason to be concerned, therefore there is no validity to anything that follows chalitzah.

Rabbi Nechemia said: It is all one, cohabitation and chalitzah, whether at the beginning, or in the middle, or at the end, there is no validity for anything which follows it.

Rabbi Nechemia disagrees with the Tanna Kamma’s logic: There is no reason to be concerned. The Gemora explains: That which the Tanna Kamma said, that just as cohabitation after a get effects acquisition, so too, cohabitation after chalitzah should acquire her; this is not a concern. Everyone knows that chalitzah releases the yevamah Biblically, and they will not think that cohabitation after chalitzah will acquire her. That which the Tanna Kamma said, that just as cohabitation following a ma’amar effects acquisition, so too, cohabitation after cohabitation should acquire her; this is also not a concern. Everyone knows that cohabitation acquires the yevamah Biblically, and they will not think that cohabitation after cohabitation will acquire her.

Abba Yosi son of Chanan (who holds that it is all one, cohabitation and chalitzah; if it is done in the beginning, there is no validity for anything which follows it; however, if it is done in the middle (a get preceded it, and ma’amar followed it) or in the end (following a get and ma’amar), there is validity for that which follows it) holds like the Rabbis that there is sufficient reason to decree by cohabitation (that it is not completely effective), and he decrees by chalitzah because of the concern regarding cohabitation. (53b)

[END]

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Daf Yomi - Yevamos 52 - Highlights

The Mishna had stated: If he married by ma'amar and cohabited with her, then this is according to the mitzvah.

The Gemora states that this seemingly would provide support for Rav Huna’s ruling. Rav Huna said: The mitzvah of yibum should be performed in the following manner: The yavam should perform a kiddushin and then he should cohabit with her.

The Gemora deflects the proof: Perhaps the Mishna means that performing ma’amar and then cohabitating is also in accordance with the mitzvah (but not necessarily the preferable method).

The Gemora asks: Isn’t it obvious that that he is performing the mitzvah; why was it necessary for the Mishna to state it?

The Gemora answers: Since we previously learned that one who perform ma’amar with his yevamah, the zikah-attachment that had previously existed leaves him, and an erusin and nisuin attachment takes effect (he may not cohabit with her now without her consent), it might enter your mind to say that one who cohabits with a yevamah after a ma’amar does not fulfill the mitzvah of yibum; the Mishna teaches us that this method is in accordance with the mitzvah. (52a)

Rav Huna said: The mitzvah of yibum should be performed in the following manner: The yavam should perform a kiddushin and then he should cohabit with her. If he cohabited and then he performed ma’amar, he has nevertheless acquired her.

The Gemora asks: If he cohabited and then he performed ma’amar, he has nevertheless acquired her. Isn’t that obvious; he certainly acquired her through cohabitation?

The Gemora revises Rav Huna’s ruling: If he cohabited with her without performing ma’amar, he has nevertheless acquired her.

The Gemora asks: We have learned in a braisa that one who cohabits with his brother’s wife without performing ma’amar first incurs lashes; this would indicate that he does not acquire her as his wife.

The Gemora answers: The lashes incurred are Rabbinical lashes. The Rabbis decreed that the yavam should perform ma’amar prior to cohabiting with her; otherwise, it would be acting immorally.

The Gemora proves that the lashes incurred are Rabbinical, for Rav gave lashes to one who betroths a woman with cohabitation (without giving money or a document beforehand), and one who would betroth a woman in the marketplace, and one who would betroth a woman without a prior arrangement to marry her, and one who would nullify a get, and one who would pronounce that the get is being written without his consent, and one who is disrespectful towards a messenger from the Rabbis, and one who has been under an excommunication for thirty days and does not come to Beis Din to have it nullified, and a groom who lives in his father-in-law’s house.

The Nehardeans said: Rav only gave lashes in the case of the man who betroths a woman with cohabitation, and without a prior arrangement to marry her. Others said that he would administer lashes even if there was an arrangement to marry beforehand (betrothing through cohabitation is regarded as licentious behavior). (52a)

The Gemora cites a braisa: How is ma’amar performed? The yavam gives the yevamah money or objects worth money. Abaye explains the braisa’s next question: What is the text of the kesuvah to the yevamah? (The text of the ma’amar would be the same as a regular betrothal, i.e. he would write on a paper or on a piece of earthenware, Behold, you are betrothed to me.) The braisa answers: The yavam writes: I so-and-so the son of so-and-so have accepted so-and-so, my yevamah, upon myself, to feed and support her as fitting, except that her kesuvah obligation rests upon the property of the first husband.

The Gemora adds: But if there are no assets available from the deceased, the Rabbis established that there should be a kesuvah from the yavam as well, in order that she should not be so easy to divorce. (52a)

Abaye asked Rabbah: If a yavam gave a get to his yevamah and said, “You are divorced from me, but you cannot marry anyone else,” what is the halacha? (Can she still be taken for yibum by the yavam or any of his brothers?) Do we say that a get which would be effective to a married woman will also be effective to a yevamah, but one that will not be effective to a married woman will also not be effective to a yevamah; or perhaps, people might confuse this case with a legitimate get, and therefore the get should be considered effective?

Rabbah answered: We are concerned that people might confuse this case with a legitimate get, and therefore the get is considered effective.

Rabbah bar Chanan asked: If the yavam would give her a blank piece of paper and say to her, “you are divorced,” will you say that he disqualified her?

Abaye answers: There is a valid distinction between the two cases. In the case when he gives her a blank piece of paper, he does not disqualify her from the Kehunah whereas here, he would disqualify her from the Kehunah. (52a)

Rami bar Chama said: They had stated: If one told a scribe, “Write a get for my arusah, and when I perform nisuin with her, I will divorce her,” this get is valid because he has the ability to use the get now to divorce her. However, if he would tell the scribe, “Write a get for this woman (who is presently not his arusah), and when I perform nisuin with her, I will divorce her,” this get is not valid because he does not have the ability to use the get now to divorce her (since he isn’t married to her now).

Rami bar Chama inquired: What would the halacha be if a yavam would tell the scribe, “Write a get for my yevamah, and when I perform yibum with her, I will divorce her”? Do we say that since she is attached to him with a zikah, the get is valid, or perhaps, we would say that the get is not valid since he did not perform ma’amar with her yet?

The Gemora states: Let the inquiry stand (without a resolution). (52a – 52b)

Rav Chanania inquired: If a yavam gave a get to the yevamah, but he wrote that the get should be effective for the zikah-attachment, but not for the ma’amar, or for the ma’amar, but not for the zikah, what is the halacha? Do we say that the ma’amar adds to the zikah-attachment, and the yavam is attempting to divorce half of his wife, and thus the get will not be valid? Or perhaps, the ma’amar and the zikah-attachment are independent of each other, and the get will be valid?

The Gemora answers: Let this inquiry be resolved from Rava’s statement; Rava said: If one gave a get for the ma’amar, but not for the zikah-attachment, the get is considered valid.

The Gemora states: This halacha was obvious to Rava, but not to Rabbi Chanania.

The Gemora concludes: Let the inquiry stand (without a resolution). (52b)

The Mishna had stated: If he submitted to chalitzah and then either married by ma'amar, or he gave a bill of divorce, or he cohabited with her, there is no validity to anything that follows chalitzah.

Rav Yehudah said in the name of Rav: This follows Rabbi Akiva’s opinion, who maintains that kiddushin cannot take effect upon a woman who is subject to a negative prohibition (once chalitzah has been performed, she becomes forbidden on account of the prohibition of Once he did not build, he shall never again build). However, according to the Chachamim, there is validity to something that follows chalitzah.

The Gemora cites a braisa supporting this interpretation of the Mishna. Rebbe said: The words of the Mishna follows Rabbi Akiva’s opinion, who maintains that kiddushin cannot take effect upon a woman who is subject to a negative prohibition. However, according to the Chachamim, there is validity to something that follows chalitzah. Rebbe states his own opinion: Kiddushin will take effect on a chalutzah when he betroths her for the sake of regular kiddushin; however, if he betroths her for the sake of yibum, there will not be any validity to the yibum after chalitzah. (52b)

The Gemora cites another braisa: If one performed a chalitzah with his yevamah and then betrothed her; Rebbe said: If he betrothed her for kiddushin, she would require a get from him. If he betrothed her for the sake of yibum, she would not require a get. The Chachamim say: In either case, she will require a get.

Rav Yosef explains Rebbe’s opinion: It would be similar to a case where one would hoe in the property of a convert (that died, and his property is ownerless), but he thinks it is his own property; the halacha is that he does not acquire the property. (The yavam mistakenly thought that he can perform yibum after chalitzah; he does not acquire her as a wife.)

Abaye asked: The two cases cannot be compared; here, at least, he had intention to acquire her, but by the hoeing, he wasn’t thinking of acquiring the property at all (since he thought it was his). (52b)

[END]

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