REVACH L'DAF
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SUMMARY
Zikah is not suspended even upon the death of the Yevamah.
According to the opinion that "Yesh Zikah," if a third brother is born after the death of the first brother and subsequently the second brother dies, even if the second brother did nothing, not even Ma'amar, the third brother is forbidden to do Yibum with his wife. (1)
Beis Shamai rules that Ma'amar (Kidushin of the Yevamah) is a valid Kinyan just like Yibum. (2)
If two brothers who were married to two sisters die without children and the sisters fall to Yibum to two surviving brothers, the brothers must do Chalitzah and not Yibum. (3)
Raban Gamliel is not concerned with the suspension of the Mitzvah of Yibum. Rebbi Meir is concerned even with the possibility of the suspension of the Mitzvah of Yibum. (4)
If one of the brothers does Kidushin with the sister of a Shomeres Yavam, according to Rebbi Yehudah ben Beseira he must wait until the brother does Chalitzah or Yibum before he marries her.
Shmuel says that the Halachah follows Rebbi Yehudah ben Beseira because he maintains "Yesh Zikah," and therefore he also rules that if the Shomeres Yavam dies it is forbidden for the Yavam to marry her mother.
Rebbi Oshiya says that Rebbi Shimon rules that even if a third brother is born prior to the Yibum of the second brother, the Yevamah is not prohibited to him in the event that the second brother dies. (5)
According to Rebbi Shimon, the prohibition of the Ervah of "Eshes Achiv she'Lo Hayah b'Olamo" applies only when the brother who was born is the only brother, or when the second brother is still alive but has not yet done Yibum.
Rabanan: If the first brother dies without children and the second brother does Ma'amar to the Yevamah and subsequently dies, the third brother must do Chalitzah to both wives. Rebbi Shimon: He should do Yibum with one and Chalitzah with the other. (6)
A BIT MORE
1. This is because his wife would be regarded as the Tzarah of an Ervah b'Zikah. The Ervah in this case is the Yevamah from the first brother who is an "Eshes Achiv she'Lo Hayah b'Olamo." However, according to the opinion that maintains "Ein Zikah," only if the second brother did Ma'amar is the third brother forbidden to do Yibum with his wife.
2. According to Beis Shamai, if the second brother does Ma'amar before he dies, his wife does not need even Chalitzah from the third brother (who was born after the death of the first brother).
3. The reason for this is that "Yesh Zikah," and therefore each sister is forbidden as a sister of a wife. According to the opinion that maintains "Ein Zikah," it is forbidden because of the possibility of the annulment of the Mitzvah of Yibum. Perhaps after one brother does Yibum, the other brother will die and the Mitzvah of Yibum will no longer apply to the second sister.
4. Two brothers are married to two sisters and one of the sisters is a minor who was married off by her mother or brothers and thus the Kidushin is only mid'Rabanan. According to Raban Gamliel, if the older brother dies without children and the sister who is a minor does not wish to do Mi'un, the brother should wait until she becomes a Gedolah and the Mitzvah of Yibum will be suspended.
5. Rebbi Shimon permits the Yevamah in this case because he rules "Yesh Zikah," and that Zikah is tantamount to a marriage.
6. The Rabanan prohibit Yibum in this case because of the prohibition of Zikah from two different brothers. Rebbi Shimon does not agree that there exists such a prohibition of Zikah from two different brothers.
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BRIEF INSIGHT
YESH ZIKAH
The Gemara says that according to the opinion that maintains "Yesh Zikah," if the Shomeres Yavam dies her mother is forbidden to the Yavam. However, if the Yavam does Kidushin with the mother even while the Yevamah is still alive, the Kidushin is valid. The reason is that Zikah is not as strong as Kidushin, even according to the opinion that maintains "Yesh Zikah." The proof to this is that the Mishnah says that if one of the brothers does Kidushin with the sister of a Shomeres Yavam, the Kidushin is valid and he merely needs to wait before marrying her until the brother does Chalitzah or Yibum according to the one who maintains "Yesh Zikah." (Nimukei Yosef)
QUICK HALACHAH
THE RELATIVES OF A SHOMERES YAVAM
The Yavam is forbidden to the relatives of his Shomeres Yavam even if she dies prior to Chalitzah or Yibum, whether there is one Yavam or two. Therefore, if one of the brothers does Kidushin with the sister of a Shomeres Yavam, the Kidushin is valid and he merely needs to wait before marrying her until the brother does Chalitzah or Yibum. Some say that the prohibition applies only if he performed Kidushin, but if he married her the Zikah is suspended and he does not have to wait. Some opinions maintain that nowadays the Cherem of Rabeinu Gershon against marrying two wives applies, and thus if a Shomeres Yavam falls to the brother, he is prohibited to marry someone else until he does Chalitzah. (Shulchan Aruch EH 159:5)
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