Yevamah’s Mitzvah

The Gemora (Kesuvos 64a) states that we don’t write a certificate of rebelliousness against the yavam because we tell the yevamah, “Go, you are not obligated in this mitzvah!”

Rashi explains: The mitzvah to procreate obligates men, but not women.

The question can be asked: What about the mitzvah of yibum? Even if the woman is exempt from the commandment to procreate, but if she is obligated in the mitzvah of yibum, it should be regarded as the yavam is depriving the yevamah of her mitzvah. It is evident from our Gemora that the mitzvah of yibum is applicable only to the yavam, and not to the yevamah.

The Avudraham writes that the yevamah does not recite a blessing when she submits to chalitzah or yibum because she is exempt from the mitzvah of procreation. It seems that the two mitzvos are dependent upon each other; since she is not obligated to have children, she is exempt from the mitzvah of yibum.

The Rambam in his Sefer HaMitzvos (216) writes that there is a commandment for the yavam to perform a yibum with his brother’s wife when his brother died childless.

The Minchas Chinuch (1:15) states that it is implicit from the Rambam that he maintains that the mitzvah of yibum is an obligation for the man (the yavam) and not for the woman (the yevamah).

The Chinuch (Mitzvah 598 and 599) states explicitly that the mitzvah of yibum is only applicable to men and not to women.

The Minchas Chinuch cites a Pnei Yehoshua in Kesuvos (40a) that the mitzvah of yibum also applies to the yevamah.

Why should there be an obligation for the yevamah; the Torah explicitly states that the brother should marry his brother’s wife. It is not written anywhere that she shall be taken for yibum?

Reb Ezriel Cziment, in his sefer Mitzvos Hamelech answers: Besides the mitzvah of performing a yibum, there is also an obligation to establish a name for the deceased. It is this mitzvah that the yevamah plays an integral role in and she is thus included in the mitzvah obligation.

This would seemingly be inconsistent with our Gemora.

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Food for Thought - Kesuvos 58

*** There are several different opinions as to the amount of terumah a groom should provide to his bride prior to the nisuin.

Rabbi Yehudah ben Beseira said: We give her two thirds terumah and one third chulin (unconsecrated produce).

Maharshal comments: An average time for a woman to menstruate (consequently, she is tamei and forbidden from eating terumah) is once every thirty days. The normal flow of blood is for three days. In addition, she must observe seven days of cleanliness prior to becoming tahor and only then will she be permitted to eat terumah again.

Rav Elyashiv Shlita asks: Where did the Maharshal find that an ordinary woman menstruates for three days? It is our custom to wait five days!?

*** The Mishna had stated: The yavam does not entitle his yevamah to eat terumah.

The Gemora explains the reason for this: It is written [Vayikra 22:11]: The acquisition of his money, he may eat of it. Only a Kohen’s own acquisition may eat terumah; however, a yevamah is the acquisition of his brother, not his own.

Rashi maintains that even if the yevamah began eating terumah while her husband was alive, she will be required to cease eating terumah once he dies.

Rabbeinu Tam disagrees and holds that Biblically, once a yevamah obtained the right to eat terumah, she preserves that right even after the husband dies. It is merely a Rabbinical prohibition; the verse cited in the Gemora is only an asmachta (used as support for the Rabbi’s decree).

Reb Elchonon Wasserman in Koveitz Shiurim (183) asks: Why does Rabbeinu Tam hold that the yevamah is Biblically permitted to eat terumah even after her husband died? She is not the wife of a Kohen any longer; she doesn’t have any offspring from the Kohen (which would have allowed her to continue eating terumah) and she is not yet the acquisition of the yavam!?

[Perhaps, this challenge can be answered by examining the concept of the zikah-attachment between the yavam and the yevamah.]

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YIBUM WITH RUS - Yevamos 77 - Daf Yomi

The Gemora relates the episode with Shaul, Doeg and Avner. Doeg the Edomite said to Shaul: “Instead of enquiring whether he is fit to be king or not, enquire rather whether he is permitted to enter the congregation or not.” What is the reason that he shouldn’t be permitted to enter into the congregation? It is because he descends from Rus, the Moabite. Avner said to him: “We learned in a braisa: An Ammonite is prohibited, but not a female Ammonite; A Moabite is prohibited, but not a female Moabite.”

The Maharsha asks: How could Doeg have thought that Boaz, the Head of the Sanhedrin, the Judge of all of Israel for many years would conduct himself improperly and publicly marry a woman who was forbidden to him? Furthermore, why did Ploni Almoni say to Boaz: “I cannot marry Rus because I am concerned that my children will be tainted”? He should have said that he can’t marry her because he is forbidden to marry an Ammonite woman (according to him)?

The Maharsha answers: The Gemora above (20b) explained the reason why a brother may not perform a yibum with his brother’s wife in a case when she is forbidden to him by a negative prohibition. The Gemora asks: Shouldn’t the positive commandment of yibum override the prohibition? The Gemora answers: He may not perform a yibum in this case because only the first act of cohabitation is permitted (that is the mitzvah of yibum), but not the second act. We are concerned that he might cohabitate with her a second time, which would be forbidden.

The Maharsha says that perhaps this Rabbinic ordinance was not yet in effect in the times of Boaz, and it was permitted to perform a yibum on a women who was forbidden to the brother by a negative prohibition.

The Ramban in Breishis (38:8) states: In the times of our Patriarchs, they would perform the mitzvah of yibum even with other relatives; not only a brother’s wife.

Ploni Almoni (Rus’ closest relative) could have performed a mitzvah of yibum with Rus even though she was a Moabite women, because the positive commandment of yibum would override the prohibition against marrying a Moabite woman. He refused to marry her because the children that would descend from this union would be tainted; they would not be allowed to marry into the congregation because the children would be Moabite’s, just like their mother. He was concerned even about his own children that he fathered beforehand. People might not understand the distinction, and they would claim that all his children are forbidden to marry into the congregation.

Boaz, on the other hand, did not have these concerns. The Gemora in Bava Basra (91a) records that all of his children died already.

This is what Doeg thought. He knew that Boaz would not publicly violate the Torah by marrying Rus illegally. This is why Doeg claimed that Dovid is prohibited from marrying into the congregation. Dovid descends from Rus, and she is a Moabite that has the prohibition of not marrying into the congregation. Boaz was justified to perform yibum with her, but the children will still remain disqualified from entering the congregation.

There are many questions on this explanation. The Kli Chemdah and Yashreish Yaakov ask: The entire premise of the Maharsha is flawed. The Ramban’s explanation of yibum is only prior to the Giving of the Torah. After the Torah was given, yibum can only be performed on a brother’s wife; not with any other relatives.

The Alshich asks: How could there have been a mitzvah of yibum with Rus altogether? Her marriage with Machlon had no validity; she was an idolater.

Furthermore, Tosfos rules that only the initial part of cohabitation would be Biblically permitted with a woman who is forbidden by a negative precept. One is prohibited from completing cohabitation. How was Boaz able to complete cohabitation with Rus, and father a child with her?

The Yashreish Yaakov concludes by saying that the words of the Maharsha were only to be taken as a drush.

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COHABITATION OF A YAVAM WITHOUT ACQUIRING HER - Yevamos 58 - Daf Yomi

The Gemora is seeking to find a case of a yavam who cohabits with a woman awaiting yibum, but she still remains a woman awaiting yibum. In truth, there are some cases, but for various reasons they don't meet the Gemora’s conditions. For example, Tosfos says that when the yavam does not intend for cohabitation at all, he does not acquire her, yet it does not fulfill the Gemora’s requirement that we only administer the waters when the husband’s cohabitation with her has preceded the adulterer’s cohabitation with her, but otherwise, we do not give her to drink. since the pesukim by sotah imply that the husband had intent for cohabitation before she committed adultery.

How many cases are there of a yavam cohabitating with the yevamah, and not acquiring her?

Reb Avi Lebovitz lists some of them:

1. Any time he does not intend for cohabitation at all, as we see in the Gemora 54a. This includes intent to press against the wall, and falling from a roof, and when he is sleeping (according to Tosfos).

2. Cohabitation with a limp member: Tosfos 53b says that even according to the opinion that you are liable by arayos, you cannot acquire a yevamah (the Gemora couldn't use this case on 58b - see aruch l'ner).

3. When he is sleeping, he does not acquire her because he is not an intelligent being at that time (according to Rashi).

4. There is a discussion between Reb Akiva Eiger and his son regarding one who cohabited with specific intention not to acquire his yevamah.

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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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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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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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A SAYING OF OUR RABBIS - Yevamos 41 - Daf Yomi

Why is the betrothal of a yavam called ma’amar and not kiddushin like the marriage of any woman?

The Beis Aharon of Karlin answered this question at a siyum on Maseches Yevamos.

Firstly, we must explain why marrying a woman is referred to as a kiddushin. It is derived from the word ‘hekdesh,’ a consecration. The concept of consecrating an object is that something that was permitted to the entire world now becomes forbidden. This is true by kiddushin, as well. A woman is permitted to everyone until a man performs a kiddushin with her; she now becomes forbidden to the entire world.

A yevamah is different. She was married to a man and prohibited to marry anyone else. When her husband died childless, she is a yevamah awaiting either a yibum or chalitzah. She is still forbidden to marry anyone else. When the yavam betroths her, this cannot be referred to as a kiddushin because she was forbidden to everyone beforehand.

Why is the betrothal called ma’amar? The essence of yibum is to perpetuate the name of the deceased. Yibum is actually a resurrection for the deceased brother. Ma’amar is the word of Hashem that brings the dead back to life as it is written: mechaye meisim b’ma’amoro, He resurrects the dead with His words. This explains why the betrothal of a yevamah is called ma’amar.

It is well known that Shabbos is a sampling of the World to Come. This is why we say in the zemiros of Shabbos: tehorim yiroshua vikadshua b’ma’amar kol asher asah vayechal Elokim bayom hashivii.

An alternative explanation is cited in Shulchan Aruch (E.H. 170:1). The expression ma’amar means a “saying” of our Rabbis. Biblically, only cohabitation can secure a yibum. The Rabbis established a form of betrothal, which they called ma’amar.

This explanation fits according to Beis Hillel, who maintains that ma’amar is only Rabbinically valid; however, according to Beis Shamai, who holds that ma’amar has Biblical ramifications, we must use the first explanation.

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ELDERLY YAVAM AND YEVAMAH AND OTHER CASES - Yevamos 40 - Daf Yomi

What is the halacha if the yavam and the yevamah do not want to perform a chalitzah? If she is agreeing to remain an agunah her entire life, do we compel the yavam to perform a chalitzah?

Chacham Tzvi (1) writes regarding a woman who is a katlanis, she was married a few times previously and her husband’s died; she will not be able to get married anyway. He rules that since she is not going to get married anyway, we do not force the yavam to perform a chalitzah. The only reason that we normally force him to perform a chalitzah is for the benefit of the yevamah that she should be able to get married; if it will make no difference to her, we do not get involved.

The Chasam Sofer (E”H II, 85) rules in the same manner regarding an elderly yavam and yevamah that do not intend on marrying anyone else anyway; we do not compel the yavam to perform a chalitzah.

Reb Yitzchak Elchonon (E”H 17) explains that chalitzah is not a mitzvah by itself; rather, it is an action that allows her to get married. If there is no need to permit her to marry anyone else, Beis Din does not get involved, and a chalitzah is not necessary.

The Oneg Yom Tov (176) disagrees and maintains that chalitzah is a mitzvah, and even if both parties are not interested, we force the yavam to perform a chalitzah.

The Maharshal in Yam shel Shlomo (4:18) concludes: We compel the yevamah to partake in the chalitzah because chalitzah is a Biblical obligation, and we would even use bodily force to ensure that this mitzvah will be fulfilled. Even if she wants a yibum, and the yavam wants to do a chalitzah, we force her to accept the chalitzah.

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Daf Yomi - Yevamos 36 - Highlights

The Gemora asks on Rabbi Yochanan (who maintains that one who performed chalitzah or yibum with his pregnant yevamah and subsequently she miscarries, she is not required to have a chalitzah from the brothers) from a braisa: One who performed a yibum with his yevamah, and it was found that she was pregnant; the yevamah’s co-wife may not marry because the child might be viable.

The Gemora emends the braisa to say as follows: One who performed a yibum with his yevamah, and it was found that she was pregnant; the yevamah’s co-wife may not marry because the child might not be viable.

According to Rabbi Yochanan that the yibum performed with a pregnant yevamah is considered valid, why don’t we allow the co-wife to marry?

Abaye answers: Rabbi Yochanan never meant to dispute that a yibum performed with a pregnant yevamah is considered valid (since this is a forbidden action, it is deemed to be invalid); he only argued regarding a chalitzah performed with a pregnant yevamah.

Rava objects to Abaye’s answer: If the yibum performed with a pregnant yevamah is not considered valid, the chalitzah cannot be valid either; for we have learned that whoever is subject to yibum is subject to chalitzah and whoever is not subject to yibum is not subject to chalitzah?

Rava answers Rabbi Yochanan’s opinion differently: This is what the braisa means: One who performed a yibum with his yevamah, and it was found that she was pregnant; the yevamah’s co-wife may not marry because the child might be viable, and a yibum or chalitzah with one’s yevamah who is pregnant with a viable child is certainly not valid, and the child does not release the co-wife until he enters into the world.

The Gemora cites a braisa supporting Rava’s position. (35b – 36a)

Rish Lakish explains the braisa as follows: A yibum or chalitzah performed with a pregnant yevamah is not considered valid, but perhaps the co-wife can be released because the majority of women give birth to viable children; the braisa teaches us that a child does not release the yevamah from her attachment to the yavam until the child enters into the world. (36a)

Rabbi Elozar attempts to cite support to Rish Lakish from a Mishna. The Mishna (119a) states: If a woman’s husband and her co-wife went overseas and they informed her that her husband has died (based on the report, she would be free to remarry, however, it is uncertain if she falls for yibum), she should not marry or be taken in yibum until she determines if her co-wife is pregnant or not. Rish Lakish asks: It is understandable why we do not permit her to be taken in yibum for perhaps the co-wife will have a viable child and the yavam will have transgressed the Biblical prohibition of taking his brother’s wife (when there is no mitzvah of yibum); however, why can’t she perform chalitzah with the yavam during the nine months of her husband’s death and get married afterwards? (By the fact that this option is not permitted, it would indicate that a chalitzah with a pregnant yevamah (or the co-wife) has no legitimacy.)

The Gemora rejects this proof: Even according to Rish Lakish, why don’t we permit her to perform a chalitzah after the nine months, which certainly would be valid?

Abaye bar Abba and Rav Chin’na bar Abaye both say that chalitzah is not an option, for if the child is viable, we will require an announcement that she is permitted to marry a Kohen (since the chalitzah was invalid).

The Gemora asks: So, why don’t we make the announcement?

The Gemora answers: Perhaps someone will be present by the chalitzah and will not hear of the announcement; he will be under the false impression that a chalutzah is permitted to a Kohen.

The Gemora cites a braisa: One who performed chalitzah with his pregnant yevamah and subsequently she miscarries; she would require chalitzah from the brothers. This is a proof to Rish Lakish. (36a)

The Mishna had stated: One who performs yibum with his yevamah and she was found to be pregnant and later gave birth; if the child is not viable, he may keep her as a wife.

Rabbi Eliezer is cited in a braisa: He is required to divorce her. (Rabbi Eliezer disagrees with the Tanna of the Mishna and maintains that he must divorce her as a penalty for taking a risk of violating the prohibition against taking one’s brother’s wife when yibum would not apply.) (36b)

Rava says: Rabbi Meir and Rabbi Eliezer said the same thing. Rabbi Eliezer; we mentioned above. Rabbi Meir; it was taught in a braisa: (The Rabbis decreed that one should wait twenty-four months for otherwise she might become pregnant from her new husband and will be compelled to wean her previous child.) One should not marry a pregnant or nursing woman, and if he did marry her, he must divorce her and he is prohibited from marrying her again; these are the words of Rabbi Meir. The Chachamim say: He must divorce her, but he may remarry her at the appropriate time (after the twenty-four months). (It emerges that both Rabbi Meir and Rabbi Eliezer hold that one who marries a woman prematurely is required to divorce her forever.)

Abaye asked Rava: Why do you say that the two rulings are similar? Perhaps, Rabbi Eliezer ruled accordingly only because the yavam was risking violating a Biblical prohibition of marrying his brother’s wife, but in the other case, where he is only violating a Rabbinical decree, he would agree to the Chachamim (he may remarry her). Alternatively, perhaps Rabbi Meir issued his ruling only in a case where the man violated a Rabbinical decree, and the Rabbis were stricter and strengthened their enactments more than for those of the Torah.; however, here, when a Biblical prohibition is involved, the Chachamim did not find it necessary to penalize the yavam because people generally distance themselves from Biblical prohibitions. (36b)

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