Harav Shalom,
I always find your answers very helpful.
1) I do not understand what the Din of Ma'mar is. Can I say that Bia'ah of a Katan Ben Tesha Veyom is equal to Ma'amar?
2) Also, if Ach Gadol did a Ma'mar, and then the second Ach Gadol did a Ma'amar (Afilu She'Asur), can the second Ach Gadol (adult brother) continue and do the Yivum, or he must give a get? what about the first adult brother that did Ma'amar? i that Ma'mar now Batel Me'eilav, or he also need to give a Geit or Chalitza?
Bechavod Rav,
Aharon Gal, Fair Lawn, New Jersey USA
Aharon - Thank you for your kind comment!
(1)
(a) Mid'Oraisa, Yibum is performed through Bi'ah without the need for any statement. However Chazal instituted that the Yavam should first do Kidushin by giving her money and saying in front of two witnesses, "You are hereby married to me through this" ("Harei At Mekudeshes Li b'Zeh"). See the Tiferes Yisrael Yevamos 2:5. The Rambam (Hilchos Yibum v'Chalitzah 5:6) writes that if he does Ma'amar first without anything coming before or after it and then does Bi'ah, this is termed Ma'amar Kasher and is the correct way of doing Yibum.
(b) The Gemara 96a states that Chazal made the Bi'ah of a nine-year old Yavam equivalent to the Ma'mar of an adult. The Gemara above 68a states that mid'Oraisa the Bi'ah of a nine-year old is considered a bona fide Bi'ah. However, even though mid'Oraisa the Bi'ah is valid, nevertheless if the Yavam is a young Kohen his Bi'ah does not enable her to eat Terumah. The latter is a Rabbinical din to the effect that the Bi'ah of a nine-year old is not a complete Bi'ah. In this way it is similar to the Ma'mar of an adult which is also not a complete Kinyan (see Rambam 1:16 and 5:18). In short, even though mid'Oraisa Bi'ah of a Katan Ben Tesha v'Yom is better than the Ma'amar of an adult, nevertheless mid'Rabanan the two practices are of equal status.
(2)
(a) The Mishnah 50a states that according to Raban Gamliel there is no Ma'amar after Ma'amar, i.e. the Ma'amar of the second Ach Gadol is worthless and cannot stop the first Ach Gadol from proceeding to do Yibum and complete his Ma'amar. However the Chachamim there disagree with Raban Gamliel and maintain that there is Ma'amar after Ma'amar. The Halachah follows the Chachamim. Therefore both Ma'amars apply and as a result she cannot do Yibum with either. It follows that they both have to give her a Get.
(b) It would appear that according to Rav (Yevamos 26b) who holds that if Chalitzah is Pesulah she has do Chalitzah with all the brothers then the same thing would apply in our case. (If so, even though only two of the brothers attempted to do Yibum with her, neverthless the other brothers will have to do Chalitzah to her.)
Chag Sameach,
D. Bloom