REVACH L'DAF
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SUMMARY
A BIT MORE
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BRIEF INSIGHT
THE LOGIC OF REBBI AKIVA'S RULING
The Gemara says that Rebbi Akiva argues with the Rabanan regarding an Isur Lav. Rebbi Akiva maintains that a woman who is an Isur Lav is exempt, along with her Tzaros, from Yibum and Chalitzah. Rashi explains that since Rebbi Akiva is of the opinion that a child born from a union with an Isur Lav is a Mamzer, the child shares the same status as a woman who is an Ervah and is exempt from Yibum and Chalitzah. Tosfos and the Tosfos ha'Rosh ask, why should the fact that the child is a Mamzer, according to Rebbi Akiva, exempt such a person from Yibum? There is an important distinction between them. A woman who is prohibited with an Isur Lav should be obligated in Yibum, because the Mitzvas Aseh of Yibum should supersede the Lav Sa'aseh of marrying this woman. That concept does not apply to a woman who is prohibited with the punishment of Kares, since an Aseh does not override a Lav that is punishable with Kares. The Tosfos ha'Rosh answers that Rebbi Akiva agrees with Rebbi Yehudah that a woman who had relations with a man is prohibited to his son, and he compares such a woman to the wife of a father with a Hekesh. Just as the wife of a father is regarded as an Ervah and is exempt from Yibum, a woman who had an out-of- wedlock relationship with a father is exempt, even though she is only an Isur Lav to his son.
QUICK HALACHAH
A YEVAMAH PROHIBITED BY A LESS-SEVERE ISUR
A Yevamah who is prohibited to the Yavam with an Isur Lav, an Aseh, or an Isur d'Rabanan may do Chalitzah but not Yibum. Her Tzarah may do either Yibum or Chalitzah. (Shulchan Aruch EH 174:1)
According to the Torah, it is permitted to do Yibum with an Isur Lav, because the Mitzvas Aseh supersedes the Lo Sa'aseh. However, after the Mitzvah is completed the woman would become prohibited to the Yavam, since the Mitzvas Aseh no longer applies. Therefore, the Rabanan decreed that it is prohibited to do Yibum with an Isur Lav because of the concern that the Yavam may continue the relationship after the Mitzvah is completed, which would be forbidden. (Beis Shmuel)
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