YEVAMOS - 111b – בית שמאי – פרק שלשה עשר – יבמות, קיא ע”ב

… he has not disqualified the first.^[1]

לא פסל את הראשונה - For their cohabitations are equal: if the first was acquired [as a wife by the deceased], she is his wife, and the later cohabitation is mere fornication; and if she was not acquired, both are strangers to him, since she was never acquired by his brother. So he keeps the first, who was not disqualified for him; but not the later one, for perhaps they were both acquired, and once he cohabited with the first, the other became forbidden to him under the prohibition of “two houses.”^[2]

And likewise two deaf-mute women.^[3] A minor and a deaf-mute: if the yavam cohabited with the minor and then cohabited with the deaf-mute, or his brother cohabited with the deaf-mute — he has disqualified the minor.

פסל את הקטנה - Because of a decree, lest he come to cohabit with the deaf-mute first, as is said in the Gemara; even though either way she [the minor] is permitted to him, since she is the first: if she is acquired, she is acquired; if she is not acquired, she is simply a stranger.

If the yavam cohabited with the deaf-mute and then cohabited with the minor, or his brother cohabited with the minor — he has disqualified the deaf-mute.

פסל את החרשת - For perhaps the minor is wholly acquired, while the acquisition of the deaf-mute is incomplete.^[4]

A competent woman and a deaf-mute: if the yavam cohabited with the competent one and then cohabited with the deaf-mute, or his brother cohabited with the deaf-mute — he has not disqualified the competent one.

If the yavam cohabited with the deaf-mute and then cohabited with the competent one, or his brother cohabited with the competent one — he has disqualified the deaf-mute.

An adult and a minor: if the yavam cohabited with the adult and then cohabited with the minor, or his brother cohabited with the minor — he has not disqualified the adult.

If the yavam cohabited with the minor and then cohabited with the adult, or his brother cohabited with the adult — he has disqualified the minor.

Rabbi Elazar says:

רבי אלעזר - This is the reading in our Mishnah; but in the earlier one [109a] he reads “Rabbi Eliezer,” and so we said in the first perek of Niddah (8a).

We teach the minor to refuse him.^[5]

מלמדין את הקטנה שתמאן בו - And she uproots her marriage, and he keeps the adult.

GEMARA

Rav Yehudah said in the name of Shmuel: The halachah follows Rabbi Elazar.

And likewise Rabbi Elazar said: The halachah follows Rabbi Elazar.^[6]

גמ' וכן א"ר אלעזר - He is [R' Elazar] ben Pedas, an Amora: the halachah follows R' Elazar of our Mishnah, who is R' Elazar ben Shamua.

And it was necessary [to say both].^[7]

וצריכא - For Shmuel and R' Elazar ben Pedas to say, in the earlier case, that the halachah follows R' Eliezer, and in this one too, that the halachah follows R' Elazar — for in both of them we teach the minor to refuse.

For had it been said in that first case — in that one Shmuel said the halachah follows Rabbi Eliezer because he had not fulfilled the mitzvah of yibum,^[8]

דאי איתמר בקמייתא - Concerning the sisters (above, 109a): since the mitzvah of yibum has not yet been fulfilled, therefore we teach the minor, his wife, to refuse, and his yevamah can have yibum.

but in this one, where the mitzvah of yibum has been fulfilled, I would say both should go out with a get.

אבל בהא דאיקיים מצות ייבום - With both of them: I would say Shmuel did not say the halachah follows Rabbi Elazar, but rather he must send both of them out with a get.

And had he taught us this one — because the adult is standing before him

ואי אשמעינן בהא משום דגדולה רמיא קמיה - For yibum; that is why we go after the minor's refusal, so that the adult can have yibum.

but the other one, no.

אבל אידך - In that case of the sisters, where the adult is his wife's sister, I would say she is not standing before him, and we would not teach the minor to refuse for the sake of the adult's yibum. So it was necessary.

It was necessary.

MISHNAH

A minor yavam who cohabited with a minor yevamah — they grow up with each other.^[9]

מתני' יגדלו זה עם זה - And if he comes to divorce her, he cannot until he grows up, for a minor's get is not a get.

If he cohabited with an adult yevamah — she raises him.

A yevamah who said within thirty days

היבמה שאמרה בתוך שלשים יום - From when the yavam took her in.

“I was not cohabited with” — they compel him to perform chalitzah with her.^[10]

לא נבעלתי לו - By the yavam; and a get from the yavam is produced from her hand, as is explained in the Gemara, and he says, “I cohabited with you, and a get is enough for you.” They compel him to perform chalitzah, for she is believed, since up to thirty days a man holds himself back from cohabiting.

After thirty days — they request of him that he perform chalitzah with her.

לאחר ל' יום - He is believed, for a man does not hold himself back from cohabiting [that long]. Still, she is not permitted, for she has made herself a forbidden piece^[11] and needs chalitzah; so they request of him, but they do not compel, since he did cohabit.

And when he admits — even after twelve months they compel him to perform chalitzah with her.

A woman who vowed [to have no] benefit from her yavam during her husband's lifetime — they compel him to perform chalitzah with her.^[12]

בחיי בעלה - And she did not intend to free herself from him after her husband's death; rather, there was anger between them.

After her husband's death — they request of him that he perform chalitzah with her.

And if she intended this — even in her husband's lifetime they request of him that he perform chalitzah with her.

GEMARA

Shall we say our Mishnah is not according to Rabbi Meir?

For it was taught: A minor boy and a minor girl neither perform chalitzah nor yibum — the words of Rabbi Meir.

גמ' לא חולצין ולא מייבמין - A minor boy — lest he turn out to be a saris; a minor girl — lest she turn out to be an ailonis;^[13] and they are not subject to yibum, so they would turn out to have violated an ervah.

You may even say it is Rabbi Meir: when Rabbi Meir spoke, it was of an adult woman with a minor boy or a minor girl with an adult man, where for one of them it is a forbidden cohabitation;

ביאה דאיסורא - A minor with an adult woman: the adult is subject to punishment, and perhaps the minor will turn out to be a saris, and she will have been cohabited with in a forbidden way, not in a place of mitzvah. Likewise an adult with a minor girl: if she turns out to be an ailonis, the adult will have violated an ervah. But a minor boy and a minor girl, even if they are not subject to yibum — for example, he is a saris and she an ailonis — there is no prohibition here, for a minor who eats neveilah, beis din is not commanded to separate him from it;^[14] and here too, both are not subject to punishment.

but of a minor boy who cohabits with a minor girl, where the two of them are alike — he did not say it.

But it teaches: If he cohabited with an adult yevamah, she raises him!^[15]

Rabbi Chanina Chuza'ah said: “Cohabited” is different.

But it says “she raises him,”^[16] so every single cohabitation is a forbidden one!

Rather it is clear: our Mishnah is not according to Rabbi Meir.

Apply here [the verse] (Devarim 25:7): to establish a name for his brother — and this one is not capable of that!^[17]

Abaye said: The verse says (Devarim 25:5): her yavam shall come upon her — whoever he is.

Rava said: Even without this you cannot say so. Is there anything that is forbidden to him now and permitted after a time?

ולבתר שעתא - When they grow up.

But Rav Yehudah said in the name of Rav: Any yevamah of whom I cannot read at the time of falling “her yavam shall come upon her” — she is like the wife of a brother who has children, and she is forbidden.^[18]

Then say so indeed!

ואימא הכי נמי - That she is forbidden to him forever.

The verse says (Devarim 25:5): When brothers dwell together — even one day old.^[19]

אפי' בן יום אחד - The verse says “dwell together” [and then] “her yavam shall come upon her”; and even if it did not imply “whoever he is,” by reasoning she is permitted to him in his minority, as was said.

A yevamah who said within thirty days, etc.^[20]

Who is the Tanna who holds that up to thirty days a man holds himself back?

Rabbi Yochanan said: It is Rabbi Meir.

For it was taught: A claim of virginity^[21]

טענת בתולים - To make her lose her kesubah.

— all thirty days; the words of Rabbi Meir.

כל שלשים יום - That he can claim, “I have not cohabited until now.”

Rabbi Yosi says: If she was secluded — immediately.^[22]

נסתרה לאלתר - He must make the claim; and if he claims after some time, he is not believed, for surely he cohabited at the start and found her a virgin and kept silent, and only now has he become angry with her.

If she was not secluded — even after several years.

Rabbah said: You may even say it is Rabbi Yosi. Rabbi Yosi said it there only of his betrothed, with whom he is familiar.^[23] But his brother's wife —

Tosfos

לאחר שלשים יום מבקשים ממנו שיחלוץ לה - And if you ask: what does he lose if he performs chalitzah with her, and why do they not compel him, so as to permit her? One may answer: he is embarrassed before beis din to perform chalitzah with her, since she spits before him.

לאחר מיתת בעלה מבקשים ממנו שיחלוץ לה - And we do not say they compel him because he put a finger between her teeth^[24] in not annulling [the vow] for her — for he cannot annul until he cohabits. And if [the Tanna] holds that he can annul — which is a dispute in Nedarim, perek Na'arah (74a), brought in perek Arba'ah Achin (above, 29b) — he holds like the view in Kesubos (59b) that she put her finger between her own teeth; and therefore they request and do not compel.

קרי כאן להקים לאחיו שם בישראל והאי לאו בר הכי הוא - And even though he will come to be capable of establishing a name, it does not help, since he had no time of fitness — just as in perek HaArel (above, 79b) we disqualify a saris chamah,^[25] who had no time of fitness, even though (above, 80a) those of his kind are healed in Alexandria of Egypt, and [the Gemara] answers, “the verse says,” etc. And [a minor] is not like a saris chamah, whose cure is not certain to come, as it is certain that a minor will reach adulthood.

יבמה יבא עליה כל דהו - Since it does not write, “the brother of the deceased shall come upon her.”

אמר קרא כי ישבו אחים יחדו - And from it we exclude, above in the second perek (17b), the wife of a brother who was not in his world;^[26] it follows that if he was in his world even one day, he performs yibum. But one cannot say he expounds it from “together,” for if so, a saris too should perform yibum for that reason, since he too is “together.”

טענת בתולים כל שלשים יום - Even if we saw that she was already secluded. Rabbi Yosi says: secluded — immediately; “immediately” is not exact, for it is impossible to make the claim until he finds a beis din.

לא נסתרה אפי' אחר כמה שנים - That is, we do not know that she was secluded, even though she entered the chuppah, and Rabbi Meir holds that a man does not hold himself back from being secluded and performing the mitzvah cohabitation. Alternatively, “not secluded” means we know for certain that she was not secluded, and on this Rabbi Meir does not disagree.

Notes

1. 1. The Mishnah (begun on 111a) speaks of a man married to two orphaned minor girls, married off by their mother or brothers — a marriage valid only by rabbinic law. He died, and the yavam cohabited with the first and then with the second (or his brother cohabited with the second). Since the two marriages stand on exactly the same doubtful footing, the first remains permitted to him.
2. 2. The Torah speaks of the yavam who “builds his brother's house” (Devarim 25:9) — one house, not two. Once yibum has been performed with one of the brother's widows, her co-wife becomes forbidden to him.
3. 3. A cheireshes (deaf-mute woman) lacks legal competence, so her marriage too is valid only by rabbinic law. Two deaf-mute widows therefore stand on equal footing, like two minors.
4. 4. With a minor there is a doubt whether her marriage was perhaps fully effective, while a deaf-mute's acquisition is certainly incomplete. So cohabiting with the minor may complete the yibum, and the deaf-mute becomes disqualified.
5. 5. Mi'un (refusal): an orphaned minor married off by her mother or brothers may annul the marriage by declaring that she does not want her husband. R' Elazar holds that we teach the minor to refuse, uprooting her marriage, so that the adult remains permitted.
6. 6. Two different men: the Amora R' Elazar (ben Pedas) rules like the Tanna R' Elazar (ben Shamua) of our Mishnah, as Rashi explains.
7. 7. Tzerichusa: the Gemara shows why the ruling had to be stated in both places — here and in the earlier Mishnah about sisters — since neither could have been learned from the other.
8. 8. The earlier Mishnah (Yevamos 109a): two brothers are married to two sisters, an adult and a minor, and the adult's husband dies. She falls to the minor's husband, but is forbidden to him as his wife's sister. R' Eliezer says we teach the minor to refuse, and he then performs yibum with the adult.
9. 9. From the age of nine a boy's cohabitation has real legal effect in yibum, but a minor cannot give a valid get (Rashi). So the two stay together until they come of age.
10. 10. Chalitzah: the ceremony of removing the yavam's shoe (Devarim 25:9), which releases the yevamah without yibum. “Compel” (kofin) means beis din forces him; “request” (mevakshin), in the next clause, means they only ask him.
11. 11. Shavyah anafshah chaticha d'issura: by her own statement a person can bind herself to a prohibition. Since she says the yibum never took place, she treats herself as a yevamah still bound to him, and so she needs chalitzah.
12. 12. A vow forbidding benefit from the yavam makes yibum impossible. If she vowed in her husband's lifetime, she was not scheming to escape yibum (Rashi: it was a quarrel), so he is compelled; after the husband's death we suspect she vowed for that purpose, so he is only asked.
13. 13. A saris is a man incapable of fathering children; an ailonis is a woman incapable of bearing them. Neither is subject to yibum, so the widow stays forbidden as a brother's wife, an ervah.
14. 14. Beis din is not obligated to stop a minor who eats forbidden food (Yevamos 114a). Rashi applies this here: when both are minors, no adult transgresses.
15. 15. The Mishnah's case: a minor yavam cohabited with an adult yevamah. Instead of separating them, she lives with him as his wife until he comes of age — exactly the adult-with-minor pairing that R' Meir is said to forbid.
16. 16. “She raises him” means they go on living as husband and wife throughout his minority; in R' Meir's view, each act raises the fear that he may turn out to be a saris.
17. 17. The purpose of yibum is to establish a name (an heir) for the deceased, and a minor cannot father children. Tosfos explains that his coming of age later does not help, since he lacked fitness at the start.
18. 18. Nefilah (falling): the moment of the husband's death, when the widow falls to the yavam. The wife of a brother who left children is not subject to yibum and is an ervah; Rav Yehudah says that if yibum was not possible at the moment of falling, she stays forbidden forever.
19. 19. “Brothers who dwell together” includes any brother alive in the deceased's lifetime, even for one day (derived above, 17b; see Tosfos). So even a newborn brother is a yavam from the moment of falling.
20. 20. The Mishnah: within thirty days of the yibum she is believed that he did not cohabit, since a man may hold himself back that long, so he is compelled to perform chalitzah; after thirty days he is presumed to have cohabited, and is only asked.
21. 21. Ta'anas besulim: a husband's claim that his bride was not a virgin, made in order to cancel her kesubah.
22. 22. Nisterah: she was secluded with him after the wedding, so he is presumed to have cohabited at once; R' Yosi holds he must then make his claim immediately.
23. 23. An arusah is a betrothed woman. He has grown familiar with her during the betrothal, so he does not hold himself back. The sentence continues on 112a.
24. 24. “Putting a finger between her teeth” means being responsible for her vow: a husband may annul his wife's vows, and one who could annul and did not is held responsible. Whether a yavam can annul before he has cohabited is disputed.
25. 25. A saris chamah is a man born incapable of fathering (literally, one who never saw the sun while fit). He never had a time of fitness, so he is excluded from yibum.
26. 26. “Not in his world”: a brother born after the deceased had died. His brother's widow is not subject to yibum and is forbidden to him.