YEVAMOS - 044a – החולץ ליבמתו – פרק רביעי – יבמות, מד ע”א

Mishnah

If one was fit and the other disqualified: if he does chalitzah, he does chalitzah with the disqualified one; and if he does yibum, he does yibum with the fit one.

היתה אחת כשרה - fit for kehunah, and the other disqualified, for example, divorced from another man.

אם בא יבם לחלוץ חולץ לפסולה - and he should not disqualify the fit one from kehunah,^[1] for "a person should not pour out the water of his cistern when others need it," even though he himself does not need them.

Gemara

"Four brothers"^[2] — can you really think so?

גמ' ארבעה אחין ס"ד - since there were only four, and all of them died, as it teaches "and died" — who does the yibum?

Rather, say: four of the brothers.

"The choice is his."^[3]

And we let him?!

ושבקינן ליה - in astonishment: how will he support them all?

But it was taught: "And the elders of his city shall call him" (Devarim 25) — they, and not their agents; "and they shall speak to him" — this teaches that they give him advice that suits him,^[4]

that if he was young and she old, or he old and she young, they say to him: What have you to do with a young woman? What have you to do with an old woman? Go to one like yourself, and do not bring strife into your home.

It is needed only where he can afford it.

דאפשר ליה - he is wealthy and able to support them.

If so, then even more as well!

It teaches us good advice: four, yes; more, no — so that each one receives an onah once a month.^[5]

עונה בחדש - the onah of Torah scholars is from Friday night to Friday night, and this is "that yields its fruit in its season" in Kesubos (62b); so each one receives an onah once a month.

"One who was married etc."^[6]

Then let him do yibum with both of them!

R' Chiya bar Abba said in the name of R' Yochanan: The verse says, "who will not build up his brother's house" (Devarim 25) — one house he builds, and he does not build two houses.

Then let him do chalitzah with both of them!

Mar Zutra bar Toviyah said: The verse says, "the house of him whose shoe was removed" (Devarim 25) — one house he releases by chalitzah, and he does not release two houses.

Then let him do yibum with one and chalitzah with the other!

ונייבם לחדא - first, and afterwards let him do chalitzah with the other.

The verse says, "if the man does not wish" (Devarim 25) — implying that if he wishes, he does yibum. Whoever is eligible for yibum is eligible for chalitzah; whoever is not eligible for yibum is not eligible for chalitzah.^[7]

כל שאינו עולה - before beis din for yibum — that is, she is not bound to yibum because the Torah exempted her, as it is written "his brother's house": one house he builds and not two houses — she does not come up for chalitzah.

And moreover, so that people should not say: a house partly built and partly released.

Let them say it!

If he does yibum and then chalitzah — so it is indeed.

But [perhaps] he does chalitzah and then yibum, and stands in violation of "will not build."

But say: where there is one wife, the mitzvah of yibum is fulfilled; where there are two, the mitzvah of yibum is not fulfilled!

If so, why do I need the co-wife of an ervah,^[8] whom the Torah forbade?

Now, if you say that two ordinary wives are not subject to chalitzah and yibum, need the co-wife of an ervah be stated?

Why would it not be needed?

אלמה לא - in astonishment. That is: if two ordinary houses are exempt, was it not needed to forbid the co-wife of an ervah? But it was needed: you might have thought the ervah stands outside and does not fall before him, so [her co-wife] is a co-wife of a single house and should go to yibum — it teaches us [otherwise].

You might have thought: the ervah stands outside, so her co-wife should go to yibum —

it teaches us that she is forbidden.

Rather, "his yevamah," "his yevamah" — it includes.^[9]

"If one was fit."^[10]

Rav Yosef said: Here Rebbi taught that a person should not pour out the water of his cistern when others need it.

כאן שנה רבי - in this Mishnah Rebbi taught us "a person should not pour out etc."

Mishnah

One who remarries his divorcee,^[11] or marries his chalutzah, or marries a relative of his chalutzah — he must divorce her, and the child is a mamzer;^[12] so says R' Akiva.

מתני' המחזיר גרושתו - after she had married [another man].

והנושא את חלוצתו - who stands under the prohibition "he shall no longer build."

והנושא את קרובת חלוצתו - further on in the Gemara we ask: but a relative of his chalutzah is not forbidden by Torah law!

יוציא והולד ממזר - for R' Akiva holds that a mamzer results even from those liable under a lav.

And the Sages say: the child is not a mamzer.

And they agree regarding one who marries a relative of his divorcee, that the child is a mamzer.

קרובת גרושתו - for his divorcee is like his wife, and her sister or mother are chayvei kerisus^[13] in his regard.

Gemara

Does R' Akiva hold that one who marries a relative of his chalutzah — the child is a mamzer?

But Reish Lakish said: Here Rebbi taught, "a divorcee's sister is by Torah law; a chalutzah's sister is by Rabbinic law"!^[14]

Teach: a relative of his divorcee.

גמ' אימא קרובת גרושתו - and the Sages disagree [only] on one who remarries his divorcee and one who marries his chalutzah.

So too it is reasonable, since the last clause teaches: "And they agree regarding one who marries a relative of his divorcee, that the child is a mamzer."

Granted, if you say that it [the first clause] speaks of her, that is why it teaches "and they agree";

but if you say it does not speak of her, what is "and they agree"?

But perhaps this is what it teaches us: that a mamzer results from those liable to kareis.

ודלמא הא קמ"ל דיש ממזר מחייבי כריתות - and this is what it means: although the Sages disagree regarding chayvei lavin, they agree regarding chayvei kerisus that the child is a mamzer.

It teaches that later: "Who is a mamzer? [The child of] any close relative who is under "shall not enter" — so says R' Akiva. Shimon HaTeimani says: any [union] for which one is liable to kareis at the hands of Heaven. And the halachah follows his words."^[15]

But perhaps the Tanna taught us an anonymous ruling following Shimon HaTeimani.^[16]

If so, let it teach "the other kareis prohibitions"; why do I need "a relative of his divorcee"?

Rather, learn from it that it speaks of her.

[But perhaps] it really does not speak of her, and since it taught "remarries his divorcee," "marries his chalutzah" and "a relative of his chalutzah," it also taught "a relative of his divorcee."

ודלמא לעולם לא איירי בה - and as for what you said, [that it should] teach us the other kareis prohibitions —

איידי דתנא רישא מחזיר גרושתו ונושא חלוצתו וקרובת חלוצתו - and the Sages disagree with him, it also taught "and they agree regarding a relative of his divorcee"; but a relative of his chalutzah — indeed, according to R' Akiva [the child] is a mamzer.

Rather, [with] a relative of his chalutzah, according to R' Akiva, [the child] is a mamzer.

R' Chiya bar Abba said in the name of R' Yochanan: This is R' Akiva's reason — the verse says, "the house of him whose shoe was removed," Scripture called her "his house."^[17]

הכתוב קראו ביתו - and he does not hold like the anonymous Mishnah at the start of our perek (41a), which teaches: "one who did chalitzah with his yevamah, and his brother married her sister and died — she does chalitzah," for according to R' Akiva she is entirely exempt.

Rav Yosef said in the name of R' Shimon son of Rebbi: All agree regarding one who remarries his divorcee …

ונייבם לחדא ונחלוץ לחדא אמר קרא אם לא יחפוץ כו' - Some texts read before this: "Then let him do chalitzah with one and yibum with the other! The verse says "who will not build" — once he has not built, he shall not build again." It seems we should not read so, for no verse is needed for that: once he did chalitzah with one he cannot do yibum with the second, since she is not eligible for chalitzah, as was said above that he does not release two houses. Moreover, "he does not release two houses" implies that the second is permitted to marry anyone without anything; and the verse "will not build" is left for what we expound in the first perek (above 10b): to move the chalutzah from kareis to a lav.

כל שאינו עולה כו' - And if you ask: a deaf-mute man or woman^[18] is not eligible for chalitzah yet is eligible for yibum, as said in perek Cheresh (below 112b)? One can answer: there they are fit for chalitzah in principle, only their mouth fails them.

ועוד - We do not read "and moreover, a decree lest they say: a house partly etc.", for if by Torah law he may do yibum with one and chalitzah with the other, he would not refrain because of a decree.

כי איכא תרתי לא תתקיים מצות ייבום - This is difficult: if so, why do I need a verse that he does not release two houses?

אלמה לא איצטריך סד"א ערוה אבראי קיימא - R' Yom Tov son of R' Yitzchak asked: still, how can the co-wife of a co-wife be found? The ervah's co-wife cannot marry his second brother, since she is forbidden to him by Torah law, for regarding him the ervah does not "stand outside." One can answer: it is found where the ervah is of the chayvei asei, or of a lav and asei, for all the brothers, so she is not subject to yibum and her co-wife is permitted.

ודילמא קסתים לן תנא כשמעון התימני - This is difficult, for it is a case of "stam and afterwards a dispute,"^[19] and in such a case the Gemara asks in perek Yesh Nochalin (Bava Basra 122b): "And if you say the Tanna taught anonymously following R' Yochanan ben Beroka — it is stam and afterwards a dispute." One can answer: even if it does not count as a stam, it still counts as the majority against an individual, as I explained above. And in perek Yesh Nochalin it relies on another question, for it says, "And moreover, what is 'rather'?"

אם כן לשמעינן שאר חייבי כריתות - It could still have asked "We have already learned it!" — for the Tanna taught anonymously like him in Kiddushin, perek HaOmer (66b): "Wherever there is no kiddushin etc. — and which is this? One who has relations with any of the arayos."

הכל מודים במחזיר גרושתו - He mentioned one who remarries his divorcee, rather than the other chayvei lavin, as the greater novelty: even though it is written "she is an abomination" — she, but not her children, is an abomination — [the child] is at least blemished.

Notes

1. 1. A chalutzah — a widow released by chalitzah — is forbidden to marry a kohen, like a divorcee. Chalitzah with the fit widow would bar her from kehunah, while the other widow is already barred.
2. 2. The Mishnah on 43b: "Four brothers married to four women who died — if the eldest of them wishes to do yibum with all of them, the choice is his." Read literally, all four brothers died and no one is left to do yibum.
3. 3. That is, the eldest surviving brother may take all four widows in yibum, since Torah law permits a man several wives. The Gemara asks whether beis din should let him.
4. 4. The verse (Devarim 25:8) speaks of a yavam who refuses yibum: the elders — the beis din of his town — summon him themselves and speak with him before chalitzah.
5. 5. Onah is a husband's duty of marital relations to his wife. For a Torah scholar it is once a week, on Friday night (Rashi); with four wives, each receives her onah once a month.
6. 6. The Mishnah (43b): "One who was married to two wives and died — the yibum or the chalitzah of one of them exempts her co-wife." The Gemara asks why he may not take both, release both, or take one and release the other.
7. 7. Chalitzah applies only to a woman bound for yibum. Once he has taken one wife in yibum, the other is no longer eligible for yibum (one house only), so she is not eligible for chalitzah either.
8. 8. The co-wife of an ervah: if one of the deceased's wives is forbidden to the yavam as an ervah (for example, his daughter), she and her co-wife are both exempt from yibum and from chalitzah (Mishnah, Yevamos 2a).
9. 9. The word "his yevamah" is written twice in the passage (Devarim 25:5 and 25:7). The repetition is expounded as an inclusion: even where there are two wives, one is taken by yibum or chalitzah and her co-wife is exempt.
10. 10. The clause: of the deceased brother's two widows, one is fit to marry a kohen and the other is already barred (for example, a divorcee). He does chalitzah with the barred one and yibum with the fit one.
11. 11. A man may not remarry his divorced wife once she has married another man (Devarim 24:4), and a yavam may not marry the yevamah he released by chalitzah. Both are lavin, negative prohibitions that carry no kareis.
12. 12. A mamzer is the child of a forbidden union, who may not marry into the community of Israel (Devarim 23:3). R' Akiva holds that even a union forbidden by a lav produces a mamzer.
13. 13. Kareis is the Divine punishment of being "cut off." Chayvei kerisus are the forbidden unions punishable by kareis, such as a wife's sister or mother.
14. 14. Reish Lakish reads the Mishnah at the start of the perek (41a) as teaching that a divorcee's sister is forbidden by Torah law, like a wife's sister, but a chalutzah's sister only rabbinically — so how could her child be a mamzer?
15. 15. The Mishnah below (49a): for R' Akiva the child of any forbidden relative is a mamzer; for Shimon HaTeimani only the child of a union punishable by kareis.
16. 16. A "stam" Mishnah is one taught without naming its author; the halachah generally follows it, so a Tanna may state a ruling anonymously to establish it as the halachah.
17. 17. The verse calls the chalutzah "his house," as if she were his wife; so her relatives are treated as his wife's relatives.
18. 18. A cheresh (deaf-mute) cannot perform chalitzah, which requires reciting verses, but may be taken in yibum, which needs no speech.
19. 19. "Stam and afterwards a dispute": when a law is first taught anonymously and later appears as a dispute, the halachah does not follow the stam.