More Discussions for this daf
1. Zikah -- the opinions of Rav and Shmuel 2. Brothers married to sisters 3. A male "Katlan"
4. Video Shiur: Retroactive Retraction of Zikah 5. The Prohibition of a Shaliach Who Brings a Get to Marry the Divorcee 6. Brothers married to sisters
דיונים על הדף - יבמות כו

Rafi Magid asked:

1. כל הכבוד לאתר.

2. שאלה: מדוע לא נוכל לומר במקרה שהיו שנים נשואים שתי אחיות ומתו חולצות ולא מתיבמות (בגלל ספק שמא היא אחות זקוקתו) שאם אחד האחים יקח את אחת משתי

הנופלות ליבום, שאם הוא לקח אותה הרי שהוברר הדבר למפרע , מדין ברירה, שהיא צריכה להיות אשתו המיובמת (למשל, בקינים אנו אומרים את הכלל הזה שאם הביא פרידה (גוזל) אם נקריבו כחטאת יוברר מדין ברירה שהוא היה חטאת עוד קודם!)מדוע שלא נאמר גם כאן את דין ברירה ?

[TRANSLATION:]

In the case of two brothers who were married to two sisters and the brothers died, where the Mishnah says "Choltzos v'Lo Misyabmos" (because of the Safek that perhaps each woman is "Achos Zekukaso"), why can't we say that if one of the surviving brothers takes one of the Yevamos and does Yibum with her, that shows that l'Mafrei'a that woman was the one who was supposed to be his wife through Yibum (the same way that we see, in Kinim, the principle that if one brings a Gozel and it is brought as a Chatas, it becomes clarified retroactively through Bereirah that it was a Chatas even from before!). Why don't we say the Din of Bereirah here?

The Kollel replies:

Excellent question!

We wrote earlier, on Daf 23b, that even if the Zikah is uprooted l'Mafrei'a from the other brothers when one of the brothers does Yibum, nevertheless if one of the brothers lived with the Yevamah's sister before she did Yibum, since he did not know at that time whether the Zikah (and the Isur of "Achos Zekukaso") would be removed from her (because perhaps the other brother might not do Yibum), at the time of the act he certainly committed an Aveirah (as Rashi says at the end of the Mishnah on 23b), and thus Bereirah will not help to remove the transgression that he did.

Mordecai Kornfeld

Rafi Magid writes back:

Thank you for the answer.

Rejection: the gmara brought ad 34a the case that toe brothers took toe sisters at the same tine (there is the discussion about CHATAT which come with 3 others CHATA'OT). If we take case like this - that the 2 brothers made yibum simoultanous - why can't ew say the DIN BEREIRAH?

The Kollel replies:

You mean to say that the two brothers should do Yibum at the same time, so that we can apply the law of Bereirah to allow the Yibum, and even at the time of the Yibum they were not doing an Isur. You prove that two acts of Yibum can be done simutlaneously from the Gemara on 34a.

First of all, I'm not sure that I agree that if the Yibum's were done simultaneously they are not doing an Isur. At the time they started the Yibum, the Yibum of the other had not yet been performed, so there still remains an Isur of Achos Zekukaso (if we hold Yesh Zikah).

But even if you are right about that, I don't agree that you can prove that two acts of Yibum can be done simultaneously from the Mishnah about the wives who got mixed up. I don't see anything there about simultaneous Yibum, only about simultaneous Kidushin, which can be accomplished by a Shali'ach. Since Yibum must be accomplished by the Yavam himself, how can two men perform Yibum at the same instant? Iy Efshar l'Tzamtzem (And even if Efshar l'Tzamtzem, it is just possible that they were. We will not assume that they actually were Metzamtzem and conclude that they did not sin, just because the tried to do it at the same time.)

l'Hitra'ot,

-Mordecai Kornfeld