NATURE IS SUBJUGATED TO THE TORAH AND ITS CHACHAMIM - Yevamos 42 - Daf Yomi

Meoros HaDaf Yomi Vol. 296 brings the Gemara in Niddah which states something astounding. The nine months of pregnancy become shorter or longer according to how the Sanhedrin determines the calendar! The Gemara says that the shofar blown at the start of the month to announce the new month as determined by the beis din causes a new calculation concerning everything connected with calculating various dates.

The Rashba writes (Toras HaBayis, bayis 7, sha’ar 3,amud 9): “Certainly the shofar is the cause, because everything that beis din below does, the beis din on High agrees, as we are told: ‘(the appointed times) that you (beis din) shall call them’.” Hashem gave power to the beis din below and gave them authority and responsibility to decide the length of months and declare leap years by adding a month.

The Rashba says that if beis din declares a leap year, they delay Pesach by a month: on the days that originally would have been Pesach it is allowed to eat chametz, and they fixed a new Pesach.

The Rashba continues that the beis din above behaves according to the rulings of the beis din below. Even nature changes according to their decisions. We have gathered a few interesting examples to demonstrate this wonderful connection between people and the Heavenly beis din, by means of the Torah.

An infant suckles: A nursing mother is forbidden to re-wed till her infant becomes two years old (Yevamos 42a; Shulchan ‘Aruch, E.H. 13:11) lest she become pregnant and cut off the source of her infant’s sustenance while her husband, who is not the infant’s father, won’t see to alternative food. In a leap year, the author of Terumas HaDeshen writes (Responsa, 216), she must wait 25 months, as the Gemara explains that the suckling period is two years and in the leap year the suckling period is prolonged according to the year! (We should point out that the Remo ruled the halachah only “to worry as a first preference” while others disagree; see Pischei Teshuvah, ibid, S.K. 16, and Responsa Chasam Sofer, E.H. 137).

Treifah: A treifah animal (whose body is defective such that it cannot live longer than 12 months) doesn’t live longer than 12 months but some say that in a leap year it can live 13 months! (Shach, Y.D. 57, S.K. 18, and see Pri Chadash, ibid).

An animal’s life depends on the chacham’s ruling: The Chazon Ish zt”l writes (O.C. 39, os 15) wonderful things about the power of Torah: “But deciding the measure of an individual treifah was given to the chacham and what appears to him, is the root of the halachah said to Moshe at Mount Sinai… and it’s possible that its life depends on the chacham’s ruling, if the ruling was made during its life.” Worms live long: Certain fruits have worms in them only while they’re still attached to the tree. These fruits must be examined during 12 months after picking as the worm lives for six months and its body disintegrates after six more months and then there is no prohibition to eat it (Shulchan ‘Aruch, Y.D. 84:8, and ‘Aroch HaShulchan, ibid, se’if 66). However, in a leap year the worms live longer and the fruit should be examined for 13 months! (See Pri Megadim, ibid, and Gilyon Maharsha, ibid).

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Daf Yomi - Yevamos 42 - Highlights

The Mishna had stated: And similarly, all other previously married women may not be betrothed (erusin), or wed (nisuin) until they have three months.

The Gemora asks: What is the necessity to wait three months?

Rav Nachman answers in the name of Shmuel: It is in order to distinguish between the offspring of the first husband and the offspring of the second husband.

Rava asks from the following braisa: A male and a female convert who were married before the conversion must wait three months from the conversion before they resume having marital relations with each other. What is the necessity over here; she was married to the same man before and after the conversion?

The Gemora answers: It is necessary to distinguish between an offspring that was conceived in sanctity (when she was Jewish) to an offspring that was not conceived in sanctity.

Rava offers an alternative reason for the three month waiting period: We are concerned that the child will mistakenly marry his paternal sister, or perform a yibum with the wife of his maternal brother, or cause his mother to marry someone else (when she is actually a yevamah, and cannot marry anyone until she is released by the yavam), or he will exempt his mother from marrying someone else. (42a)

The Gemora asks: Shouldn’t it be sufficient to wait one month and then marry; if she gives birth after seven months, it would be evident that the child is a seven-month baby from the second husband (since an eight-month baby cannot survive), and if she gives birth after eight months, it would be evident that the child is a nine-month baby from the first husband?

The Gemora answers: If she would give birth after eight months, there is still a possibility that the child is a seven-month baby from the second husband because perhaps she only conceived one month after her marriage.

The Gemora asks: Shouldn’t it be sufficient to wait two and a half months and then marry; if she gives birth after seven months, it would be evident that the child is a seven-month baby from the second husband, and if she gives birth after six and a half months, it is evident that the child is a nine-month baby from the first husband, for if the child would have been fathered by the second husband, it would not be able to survive since the pregnancy lasted for only six and a half months?

The Gemora answers: If she would give birth after six and a half months, there is still a possibility that the child has been fathered by the second husband because Mar Zutra said: Even according to the opinion that a woman who gives birth at nine months cannot give birth in abbreviated months, a woman who gives birth at seven months may give birth in abbreviated months.

The Gemora asks: Shouldn’t it be sufficient to wait a short amount of time and let her marry, and after three months, she should be examined to see if she has any signs of pregnancy; if she does, we will know that she is pregnant from the first husband?

Rav Safra answers: We do not examine married women so that they shall not appear offensive in the eyes of their husbands.

The Gemora asks: Let us examine her by her walking (a deeper footprint in loose earth would indicate that she is carrying a fetus, and this is not an intimate examination)?

Rami bar Chama answers: This is not a foolproof examination because she can cover up for herself (by walking differently) in order that her son (from the first husband) should inherit the property of her second husband. (42a)

The Gemora states: It emerges that a woman who is definitely pregnant may get married immediately.

The Gemora asks from a braisa: 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.

The Gemora answers: The decree was established because we were concerned that she might conceive while she is pregnant, and the new fetus can crush the earlier fetus.

The Gemora asks: If so, there should be this decree even by someone’s own child (he should be forbidden from cohabitating with his wife while she is pregnant)?

The Gemora answers: Either they would follow the opinion that said a pregnant woman should insert a wad into their bodies prior to cohabitating in order to prevent conception or they would follow the opinion that said these women should cohabit in the regular manner and Heaven will have compassion on them (becoming pregnant in these situations is highly unusual and therefore we prohibit them from utilizing and type of contraceptive measures as it is written [Tehillim 116:6]: Hashem protects the fools).

The Gemora asks: If so, let us apply the same options to marrying a pregnant woman?

The Gemora offers a different explanation for the decree: It is because we are concerned that the second husband might mistakenly kill the fetus during cohabitation by exerting pressure on the woman’s abdomen.

The Gemora asks: If so, let us be concerned that this might occur with his own pregnant wife?

The Gemora answers: He will have compassion on his own child and will be cautious during cohabitation.

The Gemora asks: Accordingly, he will be careful even when it is someone else’s child?

The Gemora offers a different explanation for the decree: A pregnant woman will usually become a nursing woman, and we were concerned that she might become pregnant while nursing, and her milk might spoil; this will cause the child to die.

The Gemora asks: If so, let us be concerned that this might occur with his own pregnant wife?


The Gemora answers: Regarding his own child, he will supply the child with milk and eggs.

The Gemora asks: Accordingly, he will be provide milk and eggs even when it is someone else’s child?

The Gemora answers: We are concerned that he will not supply her with the money to purchase these items.

The Gemora asks: Let us claim from the first husband’s inheritors; they are obligated to take care of this child?

The Gemora answers: A woman is embarrassed to come to Beis Din, and this will result in the death of her child. (42a – 42b)

One day, Rabbi Elozar did not go to the Beis Medrash. Afterwards, he found Rabbi Assi, and he asked him: What did the Rabbis say in the Beis Medrash today? Rabbi Assi replied: Rabbi Yochanan said that the halacha is in accordance with Rabbi Yosi. (Rabbi Yosi said: All women may enter into erusin except for the widow, because of the mourning).

The Gemora infers from here that a single Tanna disagrees with him, and not many Tannaim (for otherwise, we would not rule according to Rabbi Yosi.)

The Gemora cites a braisa supporting this: A woman who regularly goes to her father’s house (and was there for an extended period of time prior to her husband’s death), or she was angry with him (prior to her husband’s death and didn’t have relations with him), or her husband was in jail, or her husband was old or sick, or if she was sick, or if she miscarried after her husband’s death, or if she was a barren woman, or if she was old, or a minor, or an aylonis, or she was infertile, she is nevertheless required to wait three months before remarrying. These are the words of Rabbi Meir. Rabbi Yehudah said: She is permitted to marry immediately. (It is evident that Rabbi Meir and Rabbi Yosi both maintain that she must wait even though there is no possibility of being pregnant.)

Rabbi Chiya bar Abba said: Rabbi Yochanan later retracted and ruled against Rabbi Yosi. (42b)

[END]

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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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Daf Yomi - Yevamos 41 - Highlights

The Mishna states: If one of the brothers (Shimon) performed a chalitzah with his yevamah and a different brother (Levi) married her sister and subsequently died, Shimon can perform chalitzah, but not yibum (since she is the sister of his chalutzah – a Rabbinical prohibition).

Similarly, if a man divorces his wife and his brother marries her sister and subsequently died, she is exempt from yibum and chalitzah (since she is his wife’s sister).

A woman was awaiting the decision of the yavam, and his brother (who is also a yavam) betrothed the yevamah’s sister; it was said in the name of Rabbi Yehudah ben Beseira that we should tell him (the one who married the sister) to wait (from consummating the marriage) until his brother performs a yibum or chalitzah with the yevamah. (This ruling is based on the concept of zikah; the brother is forbidden to consummate the marriage with the sister of the yevamah because she is prohibited to him on account of her being the sister of his zekukah.) If the brother performed a chalitzah or yibum, the other brother can now consummate his marriage. If the yevamah died (prior to any chalitzah or yibum), the other brother can consummate his marriage (since even a wife’s sister is permitted after the wife dies, certainly by the zekukah’s sister). If the yavam dies (prior to any chalitzah or yibum), he is required to divorce his wife, and he must perform a chalitzah with the yevamah. (41a)

The Gemora asks on the first two rulings of the Mishna: Why does the Mishna use the term “Similarly,” when in fact the two rulings are opposite of each other?

The Gemora emends the Mishna; it should say “However.”

Rish Lakish said: Here is where Rebbe stated: The prohibition of taking a divorcee’s sister is Biblical, whereas the prohibition of taking a chalutzah’s sister is merely Rabbinical. (41a)

The Mishna had stated a case regarding A woman was awaiting the decision of the yavam, and his brother (who is also a yavam) betrothed the yevamah’s sister. The Gemora inquires: What would be the halacha if his wife died (can he now perform a yibum with the yevamah)?

Rav and Rabbi Chanina maintain that he is permitted to take the yevamah. Shmuel and Rav Assi hold that he is prohibited from taking the yevamah.

Rava explains the reasoning for Rav: This yevamah was originally permitted (when she first fell for yibum), she then became forbidden (when the brother married her sister), and then she became permitted again (when his wife died); she should return to her original permitted state. (41a)

Rav Hamnuna asks on Rav from the following braisa: There were three brothers, two of whom were married two sisters, and one is unmarried. If one of the husbands of the sisters died, and the bachelor performed a ma'amar, and afterwards his second brother died. (Beis Hillel rules that he must release his ma’amar-wife with a get (bill of divorce) and with chalitzah, and his brother's wife with chalitzah. This is what they said, “Woe unto him because of his wife and woe unto him because of his brother's wife.”) If then, the wife of the second brother died, the first yevamah requires a chalitzah, but cannot be taken in yibum (since she was forbidden to the third brother after the second brother died). Rav Hamnuna asks: According to Rav, she should be permitted since she was originally permitted (when she first fell for yibum), she then became forbidden (when the other brother died), and then she became permitted again (when the second brother’s wife died); why can’t he perform a yibum?

Rav was initially quiet and then after Rav Hamnuna left, he said: Why didn’t I say that the braisa is following the opinion of Rabbi Elozar who states that if the woman is prohibited even for one moment, she is forbidden forever?

Rav subsequently said: This would not be an answer since perhaps Rabbi Elozar only holds in this manner when the yevamah was forbidden at the time that she fell for yibum; however, in our case, she was permitted at that time, and therefore she would be permitted later even according to Rabbi Elozar.

Rav concludes that the braisa can in fact be following Rabbi Elozar’s opinion for we find that he rules explicitly that the yevamah remains forbidden even in a case where she was permitted at the time that she fell for yibum. (41a)

The Mishna states: The yavam does not perform a chalitzah or a yibum with the yevamah until she has three months (since her husband’s death). (This is in order to determine if the yevamah is pregnant.) And similarly, all other previously married women may not be betrothed (erusin), or wed (nisuin) until they have three months, whether they are virgins or not, whether divorced or widows, whether wed or betrothed. Rabbi Yehudah said: Women who had nisuin may enter into erusin (without waiting), and women who had erusin may enter into nisuin (without waiting), except for the women in who had erusin in Judea, for the groom is presumptuous with her (and we are concerned that they might have had relations during the erusin). Rabbi Yosi says, all women may enter into erusin except for the widow, because of the mourning (for thirty days). (41a – 41b)

The Gemora asks: It is understandable why the yavam does not perform a yibum with the yevamah until she has three months because she might have a viable child, and by cohabitating with her, he would have violated the prohibition against taking his brother’s wife (since there is no obligation for yibum); however, why can’t he perform a chalitzah with her?

Perhaps this would be a refutation of Rabbi Yochanan’s opinion who maintains that one who performed chalitzah with his pregnant yevamah and subsequently she miscarries, she is not required to have a chalitzah from the brothers (the chalitzah has been retroactively determined to be valid). Our Mishna would be ruling that the chalitzah is not valid.

The Gemora answers: Perhaps the Mishna holds that the chalitzah is valid, but we instruct them to wait for a different reason. If she is pregnant and the child is viable, we will require an announcement that she is permitted to marry a Kohen (since the chalitzah was unnecessary).

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 asks: This answer is satisfactory regarding a woman who is a widow (for she is in fact still permitted to a Kohen), but why should we delay the chalitzah by a divorcee (she is forbidden to a Kohen anyway)?

The Gemora asks: This answer would not explain why we delay the chalitzah by a case where the divorcee was only married with erusin; she will not be supported from his estate anyway?

The Gemora offers an entirely different explanation for why the chalitzah is delayed: It is based on rabbi Yosi who said: Whoever is subject to yibum is subject to chalitzah and whoever is not subject to yibum is not subject to chalitzah. (41b)

[END]

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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 40 - Highlights

The Gemora inquires as to the author of the following braisa: It is written: The yavam shall cohabit with her. This is a mitzvah. Initially (prior to her marriage), she was permitted to him. When she got married to the brother, she became prohibited to him on account of being his brother’s wife. When her husband died childless, she became permitted to him again. One might think that she returns to the original permissible status; the verse states: The yavam shall cohabit with her. This is a mitzvah.

Who taught this braisa?

Rav Yitzchak bar Avdimi says: It is Abba Shaul, who maintains that one must have pure intentions when performing the mitzvah of yibum. This is the explanation of the braisa. It is written: The yavam shall cohabit with her. This is a mitzvah. Initially (prior to her marriage), she was permitted to him. He could have married her for her beauty or for the sake of marriage. When she got married to the brother, she became prohibited to him on account of being his brother’s wife. When her husband died childless, she became permitted to him again. One might think that she returns to the original permissible status and he can marry her for any purpose; the verse states: The yavam shall cohabit with her. This is a mitzvah. He may only cohabit with her if his intentions are purely for the sake of the mitzvah.

Rava interprets the braisa differently: The braisa can follow the opinion of the Rabbis who disagree with Abba Shaul and this is its explanation. It is written: The yavam shall cohabit with her. This is a mitzvah. Initially (prior to her marriage), she was permitted to him. The yavam could have married her then if he wanted. When she got married to the brother, she became prohibited to him on account of being his brother’s wife. When her husband died childless, she became permitted to him again. One might think that he has the choice of either performing a yibum or a chalitzah with her: the verse states: The yavam shall cohabit with her. Yibum is the preferential mitzvah. (39b)

The Gemora asks on Rav Yitzchak bar Avdimi’s interpretation from the first part of the aforementioned braisa. The braisa stated: It is written [Vayikra 6:9]: It shall be eaten unleavened in a holy place. (This is referring to the remainder of a flour offering in the Beis Hamikdosh eaten by the Kohanim.) This is a mitzvah. Initially (prior to the sanctification of the mincha), it was permitted. Afterwards, when it became kodosh, it became forbidden to eat. After the removal of the kometz and its burning on the mizbeach, it becomes permitted for consumption. One might think that it returns to its original permissible status; the verse states: It shall be eaten unleavened in a holy place. This is a mitzvah.

The Gemora explains this braisa: It is understandable according to Rava; we can interpret the braisa according to the opinion of the Rabbis who maintained that yibum is the mitzvah which is more preferable than chalitzah. The explanation for this braisa is similar: It is written: It shall be eaten unleavened in a holy place. This is a mitzvah. Initially (prior to the sanctification of the mincha), it was permitted. If the Kohen desired, he may eat it, and if not, he could choose not to eat it. Afterwards, when it became kodosh, it became forbidden to eat. After the removal of the kometz and its burning on the mizbeach, it becomes permitted for consumption. One might think that it returns to its original permissible status; if the Kohen desired, he may eat it, and if not, he could choose not to eat it.

The Gemora interrupts to ask: Is there really a possibility that the Kohen can choose not to eat it? But it is written: And they shall eat them, those who gain atonement through them. This verse teaches that the Kohanim eat the offering and then the owner receives atonement.

The Gemora answers: One might think that it returns to its original permissible status; if the Kohen (who performed the mincha service) desired, he may eat it, and if he wishes, a different Kohen may eat it. The verse states: It shall be eaten unleavened in a holy place. This is a mitzvah (teaching us that there is a special mitzvah for the Kohen who performed the mincha service to eat it himself).

However, according to Rav Yitzchak bar Avdimi, who holds that the braisa is following Abba Shaul’s opinion; what two possibilities of eating are there? What is the braisa teaching us?

Perhaps you will answer that one can eat the mincha with an appetite, or he can eat it ravenously by stuffing himself with the mincha even after he was full from eating other things.

This cannot be an option (we would never have thought that he can eat the mincha in such a manner) because Rish Lakish stated that one who eats ravenously on Yom Kippur is exempt from transgressing the prohibition of affliction on Yom Kippur. It is evident that this is not regarded as eating.

The Gemora answers: One would have thought that he can eat it as matzah (unleavened), and if he desires, he may eat it as chametz; the verse states: It shall be eaten unleavened in a holy place. This is a mitzvah (teaching us that it must be eaten as matzah).

The Gemora objects to this explanation as well: How could we have thought that the mincha could be eaten as chametz when Rish Lakish expounds a different verse to teach us that the Kohanim’s portion cannot be baked as chametz because it must be eaten as matzah?

The Gemora answers: The verse teaches us that the mincha must be eaten as matzah and not as scalded bread (first scalding the dough in boiling water and afterwards baking it). (39b – 40a)

The Gemora rules that although scalded bread is not regarded as matzah in respect to a mincha offering, one can fulfill his obligation of eating matzah on Pesach with it. Since it is baked in an oven after it is scalded, it is referred to as a poor man’s bread. (40a)

The Mishna states: One who performed a chalitzah with the yevamah is like any of the other brothers in regards to inheritance. If their father is alive, the father inherits the property (of the deceased brother).

One who performs a yibum with the yevamah merits the deceased brother’s entire estate. Rabbi Yehuda said: Even if he performs a yibum, the property belongs to their father if he is alive. (40a)

The Mishna had stated: One who performed a chalitzah with the yevamah is like any of the other brothers in regards to inheritance.

The Gemora asks: isn’t this obvious; why would we think differently?

The Gemora answers: One might have thought that he should be penalized and lose his share of the inheritance because his chalitzah accomplished that she is now prohibited to all the brothers; the Mishna teaches us that this is not so, and he inherits with all the brothers. (40a)

The Gemora presents a dispute if the halacha is according to the Rabbis or Rabbi Yehudah. (40a)

The Mishna states: One who performs chalitzah with his yevamah is prohibited from marrying her relatives, and she is not allowed to marry his relatives.

He is prohibited from marrying her mother, and her mother’s mother, and her father’s mother, and her daughter, and her daughter’s daughter, and her son’s daughter, and her sister while she herself is still alive. The brothers are permitted to marry all of these women.

The chalutzah is forbidden to his (the one who performed the chalitzah) father, and his father’s father, and his son, and his son’s son, and his brother, and his brother’s son.

He is permitted to marry the relative of his chalutzah’s co-wife, but he is prohibited from marrying the co-wife of his chalutzah’s relative. (40a – 40b)

The Gemora inquires: Did the Rabbis decree that secondary arayos are prohibited by a chalutzah (in the same manner that they decreed regarding a regular wife)? Perhaps there was no necessity for the decree since even the chalutzah’s primary relatives are only Rabbinically forbidden.

The Gemora attempt to bring proofs from the Mishna, but they are all rejected.

The Gemora cites support from a braisa taught by Rabbi Chiya that the secondary arayos of a chalutzah are indeed forbidden. (40b)

[END]

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WHICH MITZVAH TAKES PRECEDENCE? - Yevamos 39 - Daf Yomi

The Gemora states that although it might be preferable for the older brother to perform a yibum, we do not wait for him. This is based on the principle that we do not delay the performance of a mitzvah in expectation of some future, better performance.

The Terumas Hadeshen (35) comments that the only time you do delay the performance of the mitzvah is we are concerned that by delaying, the mitzvah will not be fulfilled.

Similarly, the Gr”a (O”C 426) rules that this halacha is only applicable if the brother is overseas, but otherwise, we would be required to wait for him.

Sheorim Mitzuyanim B’halacha brings a proof from here to the Rama’s ruling regarding Kiddush Levanah. One should wait to recite the blessing for the moon for Motzei Shabbos if it will occur prior to the tenth of the month, but if it is afterwards, one should not wait for Motzei Shabbos, and he should recite the blessing in middle of the week. This is because there might be a few consecutive cloudy days and he will have missed the opportunity for the mitzvah this month.

There is an argument between the Radvaz (187) and the Chacham Tzvi (106) regarding a person who was in jail and he did not have the ability to perform any mitzvos and his captors gave him one day that he can choose to be released and perform the mitzvos of that day, which day should he choose. The Radvaz says he should choose the first opportunity that he has and the Chacham Tzvi disagrees and holds that one should wait until there is a mitzva of great prominence.

The Gemora in Yoma (34a) discusses the obligation of nesachim - the wine libations by the two temidin which were brought every day. There is an argument there if we derive the morning tamid from the afternoon or vice-versa. Tosfos comments that there would be a difference l'halacha if they would have only enough nesachim for one korban; which tamid should have the nesachim. Is the primary tamid the morning or the afternoon? Rabeinu Chananel says that there is no difference l'halacha; it's just a matter as to how we expound the pesukim. The Sfas Emes asks on Tosfos that the din should be clearly that whichever mitzva one is holding by, that is the one he should perform and if one is ready to bring the morning tamid, he should bring the nesachim with that one, even if the afternoon tamid is the primary one.

The Biur Halacha (109) has a shaila if one davens normally a long Shemoneh Esrei and he will certainly miss kedusha, should he daven with the tzibur and fulfill the mitzva of tefila b'tzibur or should he wait and fulfill the mitzva of reciting kedusha.

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MEN LIVE LONGER - Yevamos 38 - Daf Yomi

The Mishna states: If while a woman was awaiting yibum, she inherited property from her father, and subsequently sold it or gave it away, Beis Shamai and Beis Hillel agree that it is valid. (Although Beis Hillel rules that a woman who is an arusah may not sell property in which she inherited, the yevamah is permitted to do so.)

The Mishna asks: If she died, what shall they do with her kesuvah and with the property which comes in and goes out with her? (Does the yavam inherit her in the same manner that a husband inherits his wife?) Beis Shamai says: The husband’s heirs divide it with the father’s heirs (the woman’s inheritors). Beis Hillel disagrees: The property remains with those that presently possess it. The kesuvah goes to the husband’s heirs. The property which comes in and goes out with her goes to the father’s heirs.

Tosfos asks: Why is Beis Hillel’s ruling in this case different than the case in Bava Basra? The Mishna there (158a) states: If a house fell on him and on his mother, killing them both, and we are uncertain which one of them died first. The son’s heirs claimed that the mother died first and afterwards the son died. The mother’s heirs claim that the son died first and afterwards the mother died. Beis Hillel rules that the property is divided between them. Why there does he rule to divide the estate and here he rules that the property remains with those that presently possess it?

Tosfos answers: It is more common for a mother to die before the son; the Gemora in Bava Basra (108a) considers it a tragedy when a son dies in the lifetime of the mother. It is for this reason that Beis Hillel rules that the money is divided between them and we do not award the property to the mother’s heirs.

Sheorim Mitzuyanim B’halacha asks: The Gemora in Bava Basra is referring to a case where the son died from a sickness while the mother was alive; the mother is in tremendous grief and sorrow, and that is when it is regarded as a tragedy. In our case, a house fell on top of both of them, and that is a tragedy in itself. Since both of them died, the tragedy is not any more if the son died moments before the mother?

He continues that Tosfos could have said like he said in Kesuvos (52a) in the name of the Yerushalmi: It is common for women to die faster than men do. This is because women are generally weaker due to childbirth and the raising of children.

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Daf Yomi - Yevamos 38 - Highlights

The Gemora discusses another case of inheritance: The uncertain child and the yavam come to inherit the possessions of the grandfather (the father of the deceased and the yavam). The uncertain one says: “I am the son of the deceased, and I am entitled to half of the estate.” (The deceased son inherits “while in the grave,” and he passes it on to his son, the uncertain one.) The yavam counters: “You are my son, and you have no claim on my father’s estate.”

The Gemora rules that the yavam receives the entire estate, for he is a definite inheritor of the grandfather (his father), and the uncertain one is only a possible heir, and the principle is that an uncertain claim cannot take away from a definite claim. (38a)

The Gemora discusses another case: The uncertain child and the sons of the yavam come to inherit the possessions of the grandfather (the father of the deceased and the yavam). The uncertain one says: “I am the son of the deceased, and I am entitled to half of the estate.” The sons of the yavam counter: “you are our brother, and you should receive an equal share together with us.

The Gemora rules: They should take half of the estate. A third of the estate he should take. The remaining sixth should be divided among them. (38a)


The Mishna states: If while a woman was awaiting yibum, she inherited property from her father, and subsequently sold it or gave it away, Beis Shamai and Beis Hillel agree that it is valid. (Although Beis Hillel rules that a woman who is an arusah may not sell property in which she inherited, the yevamah is permitted to do so.)

The Mishna asks: If she died, what shall they do with her kesuvah and with the property which comes in and goes out with her? (Does the yavam inherit her in the same manner that a husband inherits his wife?) Beis Shamai says: The husband’s heirs divide it with the father’s heirs (the woman’s inheritors). Beis Hillel disagrees: The property remains with those that presently possess it. The kesuvah goes to the husband’s heirs. The property which comes in and goes out with her goes to the father’s heirs.

The Mishna concludes: If the yavam marries her, she is regarded as his wife in every respect, except that the obligations stemming from the kesuvah rests upon the property of her first husband. (38a)

The Gemora asks: Why do Beis Shamai and Beis Hillel agree in the first part of the Mishna and argue in the latter part?

Ula answers: The first part of the Mishna is referring to a case where she fell for yibum as an arusah (her first husband died while they were only betrothed), and the latter part of the Mishna is referring to a case where she fell for yibum as a nesuah.

The Gemora explains: The zikah-attachment of an arusah to a yavam makes her like a possible arusah, and the zikah-attachment of a nesuah makes her a possible nesuah. (38a – 38b)

Rabbah asked: If Ula’s explanation is correct, why does the Mishna have to state a case in which she died, let Beis Shamai and Beis Hillel argue while she is alive in respect to the distribution of the produce? (Beis Shamai would rule that she and the yavam would divide the produce because she is a possible nesuah and Beis Hillel would rule that we apply the principle of chazakah and the produce would remain in her family, and she would have exclusive rights to the produce.)

Rabbah offers a different explanation of the Mishna: Both parts of the Mishna are discussing cases where she fell for yibum as a nesuah, and the zikah-attachment of a nesuah makes her a possible nesuah. The first part of the Mishna is discussing a case where she is alive (and the principle of the property certainly belongs to her); she has a definite claim and there claim is an uncertain one (since she is only possibly a nesuah). The principle is that an uncertain claim cannot take away from a definite claim. The latter part of the Mishna is discussing a case where she died, and the husband’s heirs and her father’s heirs are coming to inherit her inherited properties. (If she would be regarded as a nesuah, the husband’s heirs would inherit her properties; if she is not a nesuah, the father’s heirs would inherit her properties.) Since both claims are uncertain, they divide the property. (38b)

The Gemora asks on Rabbah: Is it true that Beis Shamai holds that an uncertain claim cannot take away from a definite claim; didn’t we learn in a Mishna in Bava Basra (157a) otherwise? The Mishna stated: If a house fell down on a person and his father, killing both of them, and we are uncertain which one of them died first. The son owed money for a wife’s kesuvah or to another creditor (and he died without any personal assets). The father’s heirs claimed that the son died first (and he doesn’t inherit anything from the father) and afterwards the father died. The creditor claims that the father died first (and the son inherits a share of the father’s assets) and afterwards the son died. Beis Shamai maintains that the father’s heirs and the creditors divide the money. The Gemora concludes its question: The father’s heirs have a definite claim and the creditors claim is an uncertain one; and nevertheless, Beis Shamai rules that an uncertain claim can take away money from a definite claim?

The Gemora answers: Beis Shamai maintains that a debt from a document which awaits collection is considered as if it has already been collected (and the creditors also have a definite claim). (38b)

[END]

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PILEGESH - Yevamos 37 - Daf Yomi

Rabbi Eliezer ben Yaakov ruled that one should not marry a woman in one place and marry another somewhere else. This might result in the children from these two marriages to encounter one another, and a brother could end up marrying a sister (since they are unaware that they are related).

The Gemora asks: But Rav, when he would arrive in the city of Dardeshir, he would announce, “Who wants to marry me for one day?” (This was done in order to protect him from sinning.) Rav Nachman, when he would arrive in the city of Shechantziv, he would announce, “Who wants to marry me for one day?”

The Gemora answers: The Rabbis are different because their names are famous (and the children will know who their father was).

The Gemora asks: But didn’t Rava say: If one proposed to marry a woman and she has consented, she is required to wait seven clean days prior to the consummation of the marriage?

The Gemora answers: The Rabbis informed them before by sending their emissaries seven days prior to their arrival.

Alternatively, you can answer that they would only seclude themselves with the women. This protected them from sin because of the saying, “You cannot compare one who has bread in his basket with one who doesn’t have bread in his basket.”

Rabbi Yaakov Emden in Shailos Ya’avetz (2:15) cites this Gemora as support for his opinion that it is permitted for a man to have a pilegesh (a woman designated for this man, but without a kesuvah or kiddushin).

The Rambam in Hilchos Melochim (4:4) and in Hilchos Isus (1:4) rules that only a king is permitted to have a pilegesh, but a common person would be prohibited from taking a pilegesh. In Sefer HaMitzvos (213), he writes that every man is commanded to marry a woman with a kesuvah and kiddushin, and one is forbidden from cohabitating with a woman without a kesuvah and kiddushin.

The Rashba in a teshuva (4:314) and Rabbeinu Yonah in Shaarei Teshuva (3: 94,95) concur with the Rambam that a pilegesh is Biblically forbidden on account of the passuk: lo sihye kedeisha.

The Ra’avad, Ramban and the Ran disagree and maintain that it is permitted to take a pilegesh. They cite proof from Calev and Gideon and many others throughout Tanach, who had pilagshim.

The Peri Chadash says that the Rambam would concede that a pilegesh is indeed permitted if his intent is to designate her to be exclusively for him.

Reb Yaakov Emden concludes his teshuva that although he holds that one is permitted to take a pilegesh, one should only do so if it is endorsed by other scholars of his generation and they should arrange the relationship that it should be done in a manner which is permissible. He then lists the guidelines and restrictions regarding this relationship. (The teshuva goes on to say how having a pilegesh will rectify many social problems. It is quoted in the name of Reb Chaim Brisker that this is an example of a novol b’rshus haftorah, one who is vile, but nevertheless, it is within the confines of halacha.)

The Rema rules that it is forbidden to take a pilegesh nowadays.

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Daf Yomi - Yevamos 37 - Highlights

The Gemora states: There is a dispute between Rav Acha and Rafram regarding a case where one betrothed a woman within three months of being a widow or divorced, and then he ran away. One of them said that we put him in cheirem (ban) until he divorces her and the other one says that running away is sufficient (he obviously does not intend on consummating the marriage until the proper time). (37a)

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 viable, but we are uncertain if the child is a nine-month-old baby from the first brother or the seven-month-old child of the second brother; he must divorce her, and the child is deemed to be legitimate, and they are required to bring an asham taluy (a korban that one is required to bring if he is uncertain if he mistakenly committed a transgression).

Rava asked Rav Nachman: Let us follow according to the majority of women, who give birth after nine months?

Rav Nachman replied: The women by us give birth after seven months.

Rava persisted: But the majority of women in the world give birth after nine months?

Rav Nachman explained himself: Most women give birth after nine months, but some give birth after seven months. One who gives birth after nine months; her fetus is recognizable after a third of her pregnancy days (three months), and since in this case, it was not recognizable, it weakens the majority and we cannot determine based on it.

The Gemora asks: Let the fact that her fetus was not recognizable after a third of her pregnancy days be a proof that the baby is a seven-month one?

The Gemora answers: Most women who give birth after nine months; their fetus is recognizable after a third of her pregnancy days, but some are not. Since in this case, it was not recognizable, it weakens the majority and we cannot determine based on it. (37a)

The Gemora cites a braisa: The first child (the uncertain one) is fit to become a Kohen Gadol (whether he is from the first or the second brother). The second son (if they remain married to each other) is a mamzer out of doubt. Rabbi Eliezer ben Yaakov says: He is not a mamzer out of doubt.

The Gemora asks: What is the explanation for Rabbi Eliezer ben Yaakov?

Abaye explains: The Tanna Kamma maintained that the second son is a possible mamzer and he would be prohibited from marrying a certain mamzeres. Rabbi Eliezer ben Yaakov disagrees and holds that he is treated as a certain mamzer and he is permitted to marry a mamzeres.

Rava explains: The Tanna Kamma maintained that the second son is treated like a certain mamzer and he would be permitted to marrying a certain mamzeres. Rabbi Eliezer ben Yaakov disagrees and holds that he is a possible mamzer and he is prohibited to marry a mamzeres.

The Gemora cites a Tannaic dispute if a possible mamzer is permitted to marry a certain mamzer. (37a – 37b)

Rabbi Eliezer ben Yaakov ruled that one should not marry a woman in one place and marry another somewhere else. This might result in the children from these two marriages to encounter one another, and a brother could end up marrying a sister (since they are unaware that they are related).

The Gemora asks: But Rav, when he would arrive in the city of Dardeshir, he would announce, “Who wants to marry me for one day?” (This was done in order to protect him from sinning.) Rav Nachman, when he would arrive in the city of Shechantziv, he would announce, “Who wants to marry me for one day?”

The Gemora answers: The Rabbis are different because their names are famous (and the children will know who their father was).

The Gemora asks: But didn’t Rava say: If one proposed to marry a woman and she has consented, she is required to wait seven clean days prior to the consummation of the marriage?

The Gemora answers: The Rabbis informed them before by sending their emissaries seven days prior to their arrival.

Alternatively, you can answer that they would only seclude themselves with the women. This protected them from sin because of the saying, “You cannot compare one who has bread in his basket with one who doesn’t have bread in his basket.” (37b)

The Gemora discusses different inheritance disputes that can emerge when we are uncertain if the child is a nine-month baby from the deceased brother or a seven-month baby from the yavam.

The uncertain child and the yavam come to inherit the possessions of the deceased. The uncertain one says: “I am the son of the deceased, and I am entitled to the full estate.” The yavam counters: “You are my son, and you have no claim on my brother’s estate.” This is a case where the money lies in doubt, and the halacha is that the estate should be divided amongst them.

The Gemora discusses another case: The uncertain child and the sons of the yavam come (the yavam died before the division of his brother’s estate) to inherit the possessions of the deceased. The uncertain one says: “I am the son of the deceased, and I am entitled to the full estate.” The sons of the yavam counter: “You are our brother, and you are entitled to a share together with us.”

Rav Mesharshiya rules that one-third of the estate should go to the uncertain one and the remaining two–third’s should be divided between the uncertain one and the two sons of the yavam.

The Gemora discusses another case: The uncertain child and the sons of the yavam come to inherit the possessions of the deceased after the yavam has already taken his half of his brother’s estate (according to the ruling above that the yavam and the uncertain one divide the estate equally). The sons of the yavam claim: “Bring a proof that you are our brother and we will divide our father’s estate with you.” The uncertain one counters: “No matter what, I should certainly receive a portion together with you. If I am your brother, give me a portion, and if I am not your brother (and I am the son of the deceased), give me the half that was previously given to your father (since if the deceased had a son, there was no yibum, and he should not have inherited my father in the first place).

Rabbi Abba says in the name of Rav: The initial judgment stands (we cannot reverse the first ruling and the yavam rightfully owns half the estate, and the uncertain one must bring a proof that he is a son of the yavam in order to receive a portion). Rabbi Yirmiyah says: We reverse the previous judgment. (37b)

[END]

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RABBINICAL OFFENSE IS MORE SEVERE - Yevamos 36 - Daf Yomi

The Gemora states that the Rabbis were stricter and strengthened their enactments more than for those of the Torah.

The Gemora in Shabbos (110a) cites the verse in Koheles [10:8]: One who breaks through a stone wall will be bitten by a snake. This is referring to someone who does not heed the words of the Sages. One is not permitted to scoff at the decrees of the Rabbis. The Gemora in Eruvin states that one who transgresses the words of the Chachamim is liable to death at the hand of Heaven.

Rashi in Avoda Zarah (27b) states that even if he will be given medicine for this snake bite and will be healed, other snakes will come and he will eventually die.

The Maharal explains: The Rabbis goal was to erect a fence to safeguard the commandments of the Torah. One who negates these decrees is causing a breakdown for the mitzvos of the Torah. This is why we deal with him so harshly.

Rabbeinu Yonah explains why one who violates a Rabbinical decree is dealt with in a stricter manner than one who transgressed a Torah commandment. One who violates a Biblical prohibition respects the law, but he is motivated by his physical desires to sin. He is not rebuffing his obligation, rather it can be regarded as a momentary slip in his observance. One who violates a Rabbinical enactment does so because of a lack of regard for their decrees. He belittles them on account that they were not written in the Torah and there is no real necessity to keep them. He is rejecting his obligation and therefore deserving of death.

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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)

[END]

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Dikduk and Chazal - Yevamos 35 - Daf Yomi

Why does the Mishna say that the yavam performs chalitzah with the yevamah; doesn’t the passuk say that the yevamah is the one that performs chalitzah by removing the yavam’s shoe?

The Nimukei Yosef writes (104b) that throughout Meseches Yevamos, the Gemora states that he is performing the chalitzah except for a case of a mute yavam.

The Noda B’Yehudah (I, E”H, 94) writes that as a child he would think that Chazal were not diligent in writing with correct grammar (because they wrote that he performed the chalitzah, when in truth, she is the one that performs the action), but afterwards he realized that their language is extremely precise.

The Gemora later (102b) states that the term chalitzah can mean the putting on of a shoe as well. This is what the Gemora means when it says that he performs the chalitzah. The yavam puts his shoe on in order to enable the yevamah to remove his shoe.

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Was Promiscuity Common? - Yevamos 35 - Daf Yomi

The Gemora states that it is uncommon for a minor to engage in an illicit relationship.

It can be inferred from here that it is common for an adult to engage in an illicit relationship.

This is why the Mishna in Kesuvos (2a) states that they established that marriages involving a virgin should take place on a Wednesday because of the concern that she engaged in an illicit relationship during the erusin.

The Rivash writes that in his times, it was common practice to engage in illicit relationships and they did not heed any rebuke.

The Chasam Sofer (E”H, 133) comments that the unmarried women were promiscuous and they only acted with modesty after they were married. A woman is believed after she is married that she will not cause her humble to stumble since she has “her bread in the basket.”

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Daf Yomi - Yevamos 35 - Highlights

The Gemora cites two versions of Shmuel’s rulings regarding the waiting period of a woman before she gets married after cohabitating with a man.

Shmuel, according to the first version states: All women, whose husband’s died or they got divorced, are required to wait three months prior to getting married again (this is done in order to determine the paternity of the child), except for a girl who converted as a minor or a slave that was freed as a minor.

A Jewish girl who performed a mi’un (refusal) to her husband (she is obviously a minor) is not required to wait three months until getting married again. A minor who got divorced or one that had an illicit relationship is required to wait three months until getting married again. (Although minors cannot conceive, this was a precautionary decree because of adult women in a similar situation.)

Even though the Mishna rules that a minor girl is not required to wait three months before she marries again, Rav Gidel explains in the name of Rav that this was a ruling of the moment because the case was a highly uncommon one and the Rabbis did not issue their decree for this incident.

Shmuel, according to the second version states: All women, whose husband’s died or they got divorced, are required to wait three months prior to getting married again except for a girl who converted as an adult or a slave that was freed as an adult (since Shmuel follows the opinion of Rabbi Yosi who permits them to marry immediately because they utilize certain birth-control methods) and by a Jewish girl who had an illicit relationship as a minor (since it is uncommon, they didn’t decree on this).

Abaye explains the viewpoint of Rabbi Yosi: Women who engage in illicit relations invert themselves after cohabitation in order to avoid becoming pregnant. Rabbi Yehudah disagrees because he is concerned that they will not do so properly. (34b – 35a)

The Mishna had stated regarding the case where the two men inadvertently cohabitated with the wrong women that if they were daughters of Kohanim, they are disqualified from terumah.

The Gemora asks: This halacha should be the same even if they were not daughters of kohanim; they will be forbidden to their husbands if they are married to Kohanim?

The Gemora emends the Mishna to read, “If they were wives of Kohanim.”

The Gemora asks: The halacha is that even a wife of a Yisroel who has been violated and is permitted to her husband will nevertheless be forbidden to marry a Kohen in the future?

Rava answers: The Mishna is actually discussing the daughters of Kohanim. (Normally, a daughter of a Kohen who married a Yisroel, will be permitted to eat terumah after her husband dies and she has no children.) If she has been violated during the marriage, she will be disqualified from eating terumah forever. (35a)

WE SHALL RETURN TO YOU, ARBAAH ACHIN

The Mishna states: One who performed chalitzah with his yevamah and she was found to be pregnant (there is a decree against performing chalitzah with a yevamah within three months since her husband’s death) and later gave birth; if the child is viable, he will be permitted in her relatives, she will be permitted in his relatives and she is not disqualified from marring a Kohen (because the chalitzah was not valid since the brother did not die childless). If, however, the child is not viable, he will be prohibited in her relatives, she will be prohibited in his relatives and she is disqualified from marrying a Kohen.

One who performs yibum with his yevamah and she was found to be pregnant and later gave birth; if the child is viable, he must divorce her and they are required to bring a chatas offering. If, however, the child is not viable, he may keep her as a wife. If the child is viable, but we are uncertain if the child is a nine-month-old baby from the first brother or the seven-month-old child of the second brother; he must divorce her, and the child is deemed to be legitimate, and they are required to bring an asham taluy (a korban that one is required to bring if he is uncertain if he mistakenly committed a transgression). (35b)

The Gemora states: One who performed chalitzah with his pregnant yevamah and subsequently she miscarries; Rabbi Yochanan rules that she is not required to have a chalitzah from the brothers (the chalitzah has been retroactively determined to be valid). Rish Lakish says: She would require chalitzah from the brothers.

The Gemora explains their opinions: Rabbi Yochanan maintains that she is not required to have a chalitzah from the brothers because the chalitzah has been retroactively determined to be valid, and performing a yibum with a pregnant yevamah who subsequently miscarries is retroactively determined to be valid. Rish Lakish disagrees: He maintains that she would require chalitzah from the brothers because a chalitzah performed with a pregnant yevamah is not valid and a yibum performed with a pregnant yevamah is not considered a valid yibum, even if she later miscarries.

The Gemora elaborates further regarding this dispute: It can be explained that they argue based on the understanding of a verse or it can be explained based on logic.

The dispute based on logic can be explained as follows: Rabbi Yochanan holds that if Eliyahu would have informed us that she is going to miscarry, wouldn’t she be regarded as fit for a chalitzah or a yibum, now too, it is retroactively determined to be valid. Rish Lakish disagrees with this logic.

Alternatively, the dispute can be based on the understanding of the verse [Devarim 25:5]: And he has no child (then there is an obligation for yibum). Rabbi Yochanan says: He died without having a child. Rish Lakish says: Expound the verse to mean “Examine him.” (If he died with any type of child, including a fetus, the yibum or chalitzah is not valid.) (35b)

The Mishna had stated: One who performed chalitzah with his yevamah and she was found to be pregnant and later gave birth; if the child is not viable, he will be prohibited in her relatives, she will be prohibited in his relatives and she is disqualified from marrying a Kohen.

Rish Lakish explains the prohibition for her to marry a Kohen as a Rabbinic decree because in truth, the chalitzah was not valid. (35b)

[END]

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Desecrating his Words - Yevamos 34 - Daf Yomi

The Mishna in Makkos states that a person can commit one action of plowing and be liable for eight transgressions.

The Gemora asks: Couldn’t the Mishna list a ninth; if he took an oath not to plow on Yom Tov?

The Gemora answers: He has already been sworn from Har Sinai not to violate Yom Tov and therefore the oath does not take affect.

The Ran explains the principle: An oath must be regarding something voluntary; anything that a person is obligated to do regardless of his oath is not binding. However, this is only relevant to the bringing of a korban chatas if he would violate the oath, but in respect of transgressing the oath intentionally, he would incur the thirty-nine lashes.

Reb Akiva Eiger asks on the Ran from the Gemora in Makkos: The Gemora was discussing the amount of lashes one could possibly receive for committing one action that entails many different transgressions. The Gemora states that an oath cannot be included for a person is sworn from Har Sinai prior to uttering the oath against plowing on Yom Tov. According to the Ran, it should still be included because it is another prohibition that incurs the penalty of lashes?

Reb Akiva Eiger understands the Gemora that the oath does not have any validity whatsoever because of the principle that one prohibition cannot take effect on an existing prohibition.

Reb Shmuel Rozovksy asks: Why don’t both prohibitions take effect simultaneoulsy; the oath does not take effect until the beginning of Yom Tov and that is precisely the same moment that the prohibition against engaging in labor on Yom Tov commences?

Reb Elchonon Wasserman states: The principle that one prohibition cannot take effect on an existing prohibition is not applicable to an oath. He cites a Tosfos as proof to this: Tosfos states that the principle of one prohibition not taking effect on an existing prohibition would not apply to a case where one eats on Yom Kippur and simultaneously carries the food in his mouth from one domain to another. Although, the swallowing of the food causes both transgressions it is regarded as two different actions; swallowing and carrying.

Reb Elchonon explains regarding one who violates an oath by eating something he swore not to eat or by plowing a field when he swore that he wouldn’t; the transgression is not the eating or plowing, but rather the desecration of his words the oath. It is therefore not considered the same action which causes the other prohibition, and the principle of one prohibition not taking effect on an existing one would not be applicable.

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WHERE DOES THE SECOND PROHIBITION GO? - Yevamos 33 - Daf Yomi

The Shach (Y”D 238) rules that one who takes an oath that he will not eat neveilah (an animal that was not slaughtered properly), and subsequently got sick in a manner that he was permitted to eat neveilah; he is allowed to eat it, and he is not required to have his vow annulled.

The Peri Megadim in his introduction to Hilchos Pesach asks on this ruling. He states: That which we say that one prohibition cannot take effect on an existing prohibition merely means that the he will not be liable for violating both prohibitions; however, he is violating two prohibitions and he will be buried together with the completely wicked.

Accordingly, he asks on the ruling of the Shach: While it’s true that the prohibition stemming from his personal oath not to eat neveilah will not take effect because he is already prohibited from eating neveilah from the Torah, nevertheless, the oath is valid and is existent; he will not be liable for transgressing the oath. However, when he is dangerously ill and he is permitted to eat neveilah, the oath would subsequently take effect and he must have it annulled.

The Avnei Miluim (teshuva 12) does not agree with the way the Peri Megadim understands the Shach. He states: The ruling of the Shach is not based on the principle of one prohibition not taking effect on an existing prohibition, but rather, it is because of the principle mentioned specifically regarding an oath. One oath cannot take effect on another one and every person took an oath at Mount Sinai that he will not eat neveilah; this is why his personal oath is not valid and does not require annulment.

He explains the distinction between the two principles: One cannot be liable for a second prohibition when a previously existing prohibition is in effect, but there are obviously both prohibitions present. Regarding an oath, one does not have the capabilities to take an oath prohibiting himself on something that he already is sworn to uphold anyway; the second oath has no legitimacy whatsoever.

Rav Shach in Hilchos Shavuos (5:16) asks on the premise of these Acharonim. If the second prohibition is present, why isn’t one liable for violating it? If a second prohibition cannot take effect on an existing one only means that we do not administer punishment for the second prohibition, why should there be an exception for an extensive or an inclusive prohibition? He therefore learns that the second prohibition does not take effect at all. The Gemora, which states that one who violates such a prohibition will be buried with the completely wicked does not mean to say that he has indeed violated two transgressions; rather, it means that he is regarded as completely wicked since he is committing an action which involves two prohibitions even though in fact, he has only violated one.

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Daf Yomi - Yevamos 33 - Highlights

The Gemora cites a dispute regarding a non-Kohen who performed the Temple service in the Beis HaMikdosh on Shabbos. Rabbi Chiya maintains that he has violated two transgressions; one for a non-Kohen performing the Temple service and the other for desecrating the Shabbos. Bar Kappara said: He is only liable for one; for a non-Kohen performing the Temple service.

Rabbi Chiya jumped up and swore that he had heard from Rebbe that he has violated two transgressions. Bar Kappara jumped up and swore that he had heard from Rebbe that he has violated only one transgression.

Rabbi Chiya explained his position: All Jews are prohibited from performing labor on Shabbos. Permission was granted to perform labor in the Beis HaMikdosh only for Kohanim. It is therefore logical to assume that a non-Kohen who performed the Temple service in the Beis HaMikdosh on Shabbos has violated two transgressions. Bar Kappara explained his position: All Jews are prohibited from performing labor on Shabbos. Permission was completely granted to perform labor in the Beis HaMikdosh (and it was not specific to the Kohanim). A non-Kohen who performed the Temple service in the Beis HaMikdosh on Shabbos has violated only one transgression; for a non-Kohen performing the Temple service, but not for violating the Shabbos. (32b)

The Gemora cites a similar dispute between Rabbi Chiya and Bar Kappara: A blemished Kohen performed the Temple service (we are referring to a communal offering whose time is fixed, which is permitted to be brought by Kohanim in a state of tumah) while he was in a state of tumah. Rabbi Chiya maintains that he has violated two transgressions; one for performing the Temple service with a blemish and the other for performing the Temple service while he is tamei. Bar Kappara said: He is only liable for one; for performing the Temple service with a blemish.

Rabbi Chiya jumped up and swore that he had heard from Rebbe that he has violated two transgressions. Bar Kappara jumped up and swore that he had heard from Rebbe that he has violated only one transgression.

Rabbi Chiya explained his position: All Jews are prohibited from performing the Temple service while they are in a state of tumah. Permission was granted to perform the Temple service while they are in a state of tumah (for a communal offering) only for unblemished Kohanim. It is therefore logical to assume that a blemished Kohen who performed the Temple service in the Beis HaMikdosh has violated two transgressions. Bar Kappara explained his position: All Jews are prohibited from performing the Temple service while they are in a state of tumah. Permission was completely granted to perform the Temple service while they are in a state of tumah (and it was not specific to unblemished Kohanim). A blemished Kohen who performed the Temple service in the Beis HaMikdosh while he was tamei has violated only one transgression; for performing the Temple service with a blemish, but not for performing the service while he was tamei. (32b)

The Gemora cites a third dispute between Rabbi Chiya and Bar Kappara: A non-Kohen ate the meat of the bird offering which was slaughtered through melikah (a Kohen pierces the back of the bird’s neck with his fingernail – this is valid only by a sacrificial offering, otherwise, it would be deemed a neveilah and could not be eaten). Rabbi Chiya maintains that he has violated two transgressions; one for a non-Kohen eating sacrificial food and the other for eating neveilah. Bar Kappara said: He is only liable for one; for a non-Kohen eating sacrificial food.

Rabbi Chiya jumped up and swore that he had heard from Rebbe that he has violated two transgressions. Bar Kappara jumped up and swore that he had heard from Rebbe that he has violated only one transgression.

Rabbi Chiya explained his position: All Jews are prohibited from eating neveilah. Permission was granted in the Beis Hamikdosh (for a bird offering) only for Kohanim. It is therefore logical to assume that a non-Kohen ate the meat of the bird offering which was slaughtered through melikah has violated two transgressions. Bar Kappara explained his position: All Jews are prohibited from eating neveilah. Permission was completely granted in the Beis Hamikdosh (and it was not specific to Kohanim). A non-Kohen ate the meat of the bird offering which was slaughtered through melikah has violated only one transgression; for a non-Kohen eating sacrificial food, but not for eating neveilah. (32b)

The Gemora explains that Rabbi Chiya and Bar Kappara are arguing in regards to an inclusive prohibition (more objects become forbidden to the same people) taking effect on an existing prohibition, and according to Rabbi Yosi (who maintains that one prohibition can take effect on an existing one). Rabbi Chiya holds that Rabbi Yosi maintains that the inclusive prohibition does take effect and therefore he has violated two transgressions. Bar Kappara holds that it does not take effect and he has violated only one prohibition. (33a)

The Gemora asks: What are the inclusive prohibitions in each of three cases cited above?

The Gemora answers: The first case is where a non-Kohen performed the Temple service in the Beis HaMikdosh on Shabbos. The non-Kohen is permitted to perform labor, but is prohibited from perform the Temple service. When Shabbos arrives, we can say that since he is now prohibited from engaging in any labor, he also is prohibited from performing the Temple service on account of Shabbos. (This is an inclusive prohibition since more objects become forbidden.)

The second case is where a blemished Kohen who performed the Temple service in the Beis HaMikdosh while he was tamei. The blemished Kohen is permitted to eat portions of the sacrificial offerings, but he is prohibited from performing the Temple service. When he becomes tamei, we can say that since he is now prohibited from eating portions of the sacrificial offerings, he is also prohibited from performing the Temple service on account of tumah. (This is an inclusive prohibition since more objects become forbidden.)

The Gemora asks that the third case cannot be explained to be referring to an inclusive prohibition taking effect on an existing prohibition since both prohibitions take effect simultaneously. As soon as the melikah is performed, the meat of the bird offering becomes forbidden to a non-Kohen and it becomes a neveilah at the same time. (33a)

The Gemora explains that Rabbi Chiya and Bar Kappara are arguing in regards to simultaneous prohibitions, and according to Rabbi Yosi (who maintains that he would be liable for two prohibitions). Rabbi Chiya holds that Rabbi Yosi maintains that the inclusive prohibition does take effect and therefore he has violated two transgressions. (Rabbi Yosi must be referring to the following case: Two brothers designated one agent to go and betroth two sisters. The sisters also appointed an agent to accept the betrothals for them. The agent of the brothers gave the two betrothals to the agent of the sisters simultaneously. The prohibition of his wife’s sister and his brother’s wife occurred simultaneously.) Bar Kappara holds that it does not take effect and he has violated only one prohibition. (33a)

The Gemora asks: What are the simultaneous prohibitions in each of three cases cited above?

The Gemora answers: The first case is where a non-Kohen performed the Temple service in the Beis HaMikdosh on Shabbos. This is referring to a case when he grew the two pubic hairs that render him an adult on Shabbos. The prohibition against a non-Kohen performing the Temple service and the prohibition against engaging in labor on Shabbos occur simultaneously.

The second case is where a blemished Kohen who performed the Temple service in the Beis HaMikdosh while he was tamei. This is referring to a case when he grew the two pubic hairs that render him an adult after he had a blemish and became tamei. These two prohibitions occur simultaneously. Alternatively, we can say that his finger got cut off with a knife that was tamei. (The third case, we explained previously.) (33a)

The Gemora asks on this explanation: According to Rabbi Chiya, we can understand Rebbe’s two statements; the statement that he has violated two transgressions is following Rabbi Yosi’s opinion and the statement that he has violated only one transgression is following the opinion of Rabbi Shimon. However, according to Bar Kappara, was Rabbi Chiya lying when he stated in the name of Rebbe that he has violated two transgressions? (33a)

The Gemora explains that Rabbi Chiya and Bar Kappara are arguing in regards to simultaneous prohibitions, and according to Rabbi Shimon (Rabbi Chiya maintains that by simultaneous prohibitions, he would be liable for two prohibitions, and not by an inclusive prohibition, and Bar Kappara holds that he will never be liable for two transgressions).

The Gemora asks on this explanation: According to Bar Kappara, we can understand Rebbe’s two statements; the statement that he has violated only one transgression is following the opinion of Rabbi Shimon and the statement that he has violated two transgressions is following Rabbi Yosi’s opinion. However, according to Rabbi Chiya, was Bar Kappara lying when he stated in the name of Rebbe that he has violated only one transgression?

The Gemora answers: Rabbi Chiya could say that Bar Kappara was mistaken when he quoted Rebbe as ruling that one is liable for only one transgression in all three cases. Although it is true that Rabbi Shimon would hold that in cases of an inclusive prohibition, he is liable for only one; but in cases involving simultaneous prohibitions, Rabbi Shimon would concede that they both take effect. Rebbe did not issue a ruling to bar Kappara regarding the third case where a non-Kohen ate the meat of the bird offering which was slaughtered through melikah. This case can only be referring to simultaneous prohibitions and not an inclusive prohibition. Bar Kappara erroneously (according to Rabbi Chiya) grouped this case together with the other two and stated that Rebbe maintains according to Rabbi Shimon that one is liable for only one transgression even when the prohibitions occur simultaneously. Rabbi Chiya disagrees and holds that Rabbi Shimon concedes to Rabbi Yosi by simultaneous prohibitions that one would be liable for two transgressions. (33b)

The Gemora cites a braisa which refutes the opinion of Bar Kappara. It is evident from the braisa that Rabbi Shimon only disagrees with Rabbi Yosi by an inclusive prohibition, but agrees that one will be liable for two transgressions when the prohibitions occur simultaneously. (33b)

[END]

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THE PROHIBITION OF A WIFE’S SISTER EVEN AFTER THE WIFE’S DEATH - Yevamos 32 - Daf Yomi

The Gemora cites a braisa: (Three were two brothers, Reuven and Shimon that were married to two sisters, Rochel and Leah. Reuven died childless, leaving his wife Rochel to fall for yibum to Shimon. Shimon cannot perform a yibum at this time for Rochel is his wife’s sister.) If Shimon went ahead and cohabitated with Rochel (while his wife was still alive), he has violated two prohibitions; his brother’s wife and his wife’s sister. These are the words of Rabbi Yosi. Rabbi Shimon said: He is only liable for the prohibition against taking one’s brother’s wife.

Rashi specifically mentions that this dispute is referring to a case where he cohabitated with her while his wife was still alive. The Rashba and other Rishonim explain that Rashi is coming to exclude the opinion of Rabbeinu Chananel, who understands this sugya as referring to a case where his wife had already died (like the case of the Mishna).

All the Rishonim ask on Rabbeinu Chananel: How can he possible learn that these Tannaim are discussing a case where his wife had already died and nevertheless, there should still be a prohibition against taking one’s wife’s sister? There is no argument to the halacha that a wife’s sister is permitted after one’s wife has already died.

Reb Avrohom Erlanger in Birchas Avrohom attempts to answer this question. He prefaces his remarks by saying that what he is about to say is a novel idea, but we must at least attempt to explain the viewpoint of Rabbeinu Chananel.

Let us examine the permissibility of the wife’s sister after the wife dies. Is the name of the initial prohibition “a wife’s sister, while the wife is alive”? (It would not be called a prohibition that is dependent on time, i.e. the lifespan of his wife because the prohibition is only until then.) Or perhaps the prohibition of a wife’s sister is forever, similar to any other ervah; the Torah reveals to us that the death of the wife permits her sister to be taken by the husband?

A possible difference in halacha between these two possibilities would be in a case when we are uncertain if the wife died. Would there be a chazakah that the wife’s sister is still forbidden to him? Reb Elchonon Wasserman states that the principle of chazakah can only be applicable if the original prohibition was forever and the uncertainty is regarding a change in the status.

Although the simple explanation would be that the wife’s sister prohibition is initially only relevant during the lifespan of his wife; if we learn differently, we can explain the opinion of Rabbeinu Chananel.

He maintains that the prohibition of a wife’s sister is forever, but there is a halacha that the death of the wife is a matir, permits her to be taken by the husband.

Reb Shimon Shkop states that in order for one prohibition to take effect on an existing prohibition, it must have halachic ramifications. Perhaps we can say similarly regarding the permission emerging form the death of the wife. If her death will result in a permission for the sister to be taken by the husband, the death will permit her; however, if the wife’s death will not bring about such a consequence because she will anyways be forbidden to the husband on account of being his brother’s wife, the death of the wife will not remove the wife’s sister prohibition, and she will still be forbidden to the husband on account of being a wife’s sister as well.

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Daf Yomi - Yevamos 32 - Highlights

The Mishna states: Three were two brothers, Reuven and Shimon that were married to two sisters, Rochel and Leah. Reuven died childless, leaving his wife Rochel to fall for yibum to Shimon. (Shimon cannot perform a yibum at this time for Rochel is his wife’s sister.) Afterwards Shimon’s wife dies and now Rochel would be permitted to Shimon (since one’s wife’s sister is permitted to him after his wife dies). Shimon is still forbidden from performing a yibum with Rochel, his wife’s sister because once a yevamah is prohibited to the yavam, she is forbidden forever. (32a)

The Gemora asks a question on our Mishna based on a Mishna we had learned previously (30a). (The Mishna had stated: There were three brothers, Reuven, Shimon and Levi. Reuven and Shimon were married to two sisters, Rochel and Leah. Reuven died childless, leaving his wife Rochel to fall for yibum to Shimon and Levi. Shimon cannot perform a yibum at this time for Rochel is his wife’s sister. Levi performed the yibum, and subsequently, Leah, Shimon’s wife died. Levi died childless, leaving his wife Rochel to fall for yibum again to Shimon. This time, however, she is not forbidden to Shimon because Shimon’s wife had died. The Mishna taught us that nevertheless, Shimon cannot perform a yibum with Rochel because once she was forbidden to Shimon, she remains forbidden to him forever.) The Gemora asks: If in the previous Mishna, when the yevamah was not completely rejected from this house (since she was permitted to Levi), nevertheless, we rule that she remains forbidden to the other brother (Shimon) forever; in our Mishna, where she is completely rejected from this house (for Shimon was the only brother), she should certainly remain forbidden to Shimon (even after his wife dies). Why was it necessary to teach this case?

The Gemora answers: Originally, the Tanna of the Mishna was of the opinion that only in our case would the yevamah remain forbidden because she was completely rejected from this house, however, in the case when she was not completely rejected from the house, the Tanna maintained that she would be permitted (he therefore omitted this case). Afterwards, the Tanna reversed his opinion and ruled that she would remain forbidden in both cases, even when she was not completely rejected from the house. Since this case was dear to him, he inserted it prior to the other ruling; and since the other ruling was taught already, it was not moved from its original place. (32a)

The Gemora cites a braisa: (Three were two brothers, Reuven and Shimon that were married to two sisters, Rochel and Leah. Reuven died childless, leaving his wife Rochel to fall for yibum to Shimon. Shimon cannot perform a yibum at this time for Rochel is his wife’s sister.) If Shimon went ahead and cohabitated with Rochel (while his wife was still alive), he has violated two prohibitions; his brother’s wife and his wife’s sister. These are the words of Rabbi Yosi. Rabbi Shimon said: He is only liable for the prohibition against taking one’s brother’s wife.

The Gemora asks a contradiction from a braisa: Rabbi Shimon said: He is only liable for the prohibition against taking one’s wife’s sister.

The Gemora answers: The first braisa is referring to a case where the prohibition of the brother’s wife preceded the prohibition of the wife’s sister; the second braisa is discussing a case where the prohibition of the wife’s sister preceded the prohibition of the brother’s wife. (Rabbi Shimon holds that a prohibition cannot take effect on an existing prohibition.) (32a)

The Gemora asks on Rabbi Shimon: In the first braisa, where the wife’s sister prohibition does not take effect, why can’t Shimon perform a yibum in this case; the only prohibition is the brother’s wife and the mitzvah of yibum overrides that?

Rav Ashi answers: The wife’s sister prohibition is pending; if at any point in time, the brother’s wife prohibition is lifted, the prohibition of taking one’s wife’s sister will take effect. It is for this reason that the brother’s wife prohibition remains in effect. (32a)?

The Gemora discusses Rabbi Yosi’s opinion: Rabbi Yosi maintains that he is liable for two prohibitions; his brother’s wife and his wife’s sister. It emerges that Rabbi Yosi would hold that a prohibition can take effect on an existing prohibition.

The Gemora asks from a braisa: If one committed a transgression that entails two different death penalties, he receives the one that is stricter. Rabbi Yosi says: He incurs the first punishment. Rabbi Yosi explains in a different braisa: If the woman was first his mother-in-law and later became the wife of another man, he is subject to the mother-in-law prohibition. If the woman was first the wife of another man and later became his mother-in-law, he is subject to the wife of another man prohibition. Thus we see that Rabbi Yosi maintains that one prohibition does not take effect on an existing prohibition.

Rabbi Avahu answers: Rabbi Yosi maintains that one prohibition does not take effect on an existing prohibition; however, he agrees in a case that the second prohibition can take effect if it is a more extensive prohibition. (This explains why Rabbi Yosi maintains that if Shimon went ahead and cohabitated with Rochel, he has violated two prohibitions; his brother’s wife and his wife’s sister. When Shimon married, Rochel was forbidden to him on account of being his wife’s sister. When Reuven married Rochel, she became prohibited to the other brothers besides for Shimon. This prohibition includes more people, so it takes effect on Shimon as well. In a case where the second prohibition is not more extensive, Rabbi Yosi concedes that the second prohibition does not take effect. This would explain Rabbi Yosi’s opinion in the second braisa. A married woman is forbidden to the entire world; becoming his mother-in-law does not create any new prohibitions to any others. This is why the mother-in-law prohibition does not take effect. If she was his mother-in-law first and then she got married, the wife of another man prohibition will take effect. If he committed the transgression unintentionally, he will be required to bring two chatas offerings. If he sinned intentionally, he will be subject to two death penalties, but since he can only be executed once, he will receive the stricter type of execution.)

The Gemora asks: This would only be understandable in a case where the prohibition of the wife’s sister preceded the prohibition of the brother’s wife; since the brother’s wife prohibition includes more people (the brothers), it is deemed a more extensive prohibition and it will take effect. However, where the prohibition of the brother’s wife preceded the wife’s sister prohibition, why would Rabbi Yosi hold that the second prohibition takes effect?

Perhaps you will answer that the second prohibition does add more people; when Shimon marries his wife, he becomes prohibited to all her sisters besides the one who was already his brother’s wife. Let us say that Rochel will be subject to the wife’s sister prohibition besides the brother’s wife prohibition based on that? The Gemora states that this would not be considered an extensive prohibition (the forbidden object becomes prohibited to more people). This is an inclusive prohibition (more objects become forbidden to the same people) and Rabbi Yosi does not hold that the second prohibition takes effect when it is an inclusive one.

Rava answers: Although Rabbi Yosi maintains that he is liable for one prohibition (since the second one does not take effect), he is considered a completely wicked person (for violating two prohibitions) and will be buried in a cemetery reserved for those that were executed by burning or stoning. (32a – 32b)

[END]

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FROM THEIR MOUTHS AND NOT FROM THEIR WRITING - Yevamos 31 - Daf Yomi

The Gemora states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

Reb Akiva Eiger discusses some other practical applications for this principle.

(http://weeklyshtikle.blogspot.com/2007/05/weekly-shtikle-emor.html) The Weekly Shtikle writes the following: The topic is the discussion as to whether or not writing may qualify as a valid means of fulfilling the mitzvah of Sefiras HaOmer. That is, if one was to write, "Hayom Yom X La'Omer," would that be sufficient to fulfill one's obligation and would this action disallow one from repeating the count with a brachah?

The discussion of this halachic quandary follows an interesting family tree. This issue is first dealt with in Shaalos uTeshuvos of R' Akiva Eiger, siman 29. The teshuvah is actually written by R' Akiva Eiger's uncle, R' Wolf Eiger. Unable to attend his nephew's wedding, he made a simultaneous banquet of his own to celebrate the occasion. He wrote to his nephew about this halachic issue which was discussed at the banquet. He cites a number of related issues which he builds together to try to reach a conclusion. The gemara (Yevamos 31b, Gittin 71a) teaches that witnesses may only testify by means of their mouths and not by writing. The gemara (Shabbos 153b) states that mutes should not separate Terumah because they cannot say the brachah. It is assumed that writing the brachah would not have been sufficient. Also, there is a discussion amongst the commentaries with regards to the validity of a vow that is written and not recited. R' Wolf Eiger concludes that writing is not a sufficient means of fulfilling the mitzvah of Sefiras HaOmer. However, this sparks a debate between him and his nephew which stretches out to siman 32.

This issue is eventually discussed in Shaalos uTeshuvos Kesav Sofer (Yoreh Dei'ah siman 106) by R' Avraham Shmuel Binyomin Sofer, R' Akiva Eiger's grandson who was, in fact, named after R' Wolf Eiger. He covers a host of related topics and eventually discusses the exchange recorded in his grandfather's sefer. The debate, although it encompasses various pertinent issues, never produces any concrete proof directly concerning the act of counting. However, Ksav Sofer quotes his father, Chasam Sofer, in his footnotes to Shaalos uTeshuvos R' Akiva Eiger (his father- in-law) where he provides a more concrete proof. The gemara (Yoma 22b) teaches that one who counts the number of B'nei Yisroel transgresses a prohibition as it is written (Hoshea 2:1) "And the number of B'nei Yisroel shall be like the sand of the sea that shall not be measured nor counted." The gemara cites two examples (Shmuel I 11:8, 15:4) where Shaul HaMelech went out of his way to avoid this prohibition by using pieces of clay or rams in order to perform a census. Chasam Sofer suggests that Shaul could simply have counted the men by writing down the numbers and not saying them. Since Shaul went to far greater lengths, we are compelled to say that writing the number of men would still have qualified as counting them and he would hot have sufficiently dodged the prohibition. Thus, concludes Chasam Sofer, if one has explicit intention to fulfill the mitzvah, writing is a valid means of performing the mitzvah of Sefiras HaOmer. However, Kesav Sofer suggests that perhaps the brachah should not be recited in this case.

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