1) THE STATUS OF THE WIVES AFTER ONE OF THEM PERFORMS CHALITZAH
QUESTION: The Gemara discusses the status of the surviving brothers and the wives (Tzaros) of the deceased brother after Chalitzah is performed by one of the brothers with one of the Tzaros. Reish Lakish maintains that all of the brothers are prohibited to all of the Tzaros with an Isur Kares (the Isur of "Eshes Ach"), with the exception of the brother and the woman who did Chalitzah, who are prohibited to each other only with a Lav (the Isur of "Lo Yivneh"). Rebbi Yochanan maintains that they are all prohibited to each other with only a Lav and not with Kares.
The Gemara explains Rebbi Yochanan's reasoning. It does not make sense that one brother (the one who did Chalitzah) should be prohibited to the woman with only a Lav while the other brothers are prohibited to her with an Isur Kares, since they were all equally entitled to do Chalitzah. Rather, the brother who did Chalitzah acted as a Shali'ach on behalf of all the other brothers, and the woman who did Chalitzah acted as a Shali'ach on behalf of all the Tzaros.
It is clear that Rebbi Yochanan maintains that the Isur Kares of "Eshes Ach" disappears completely in a situation of Yibum, when one brother dies and his wives fall to Yibum (or Chalitzah) to the other brothers. According to Rebbi Yochanan, at exactly what point does the Isur Kares of "Eshes Ach" of all the wives disappear? Is it removed as soon as the brother dies or only when a surviving brother performs Chalitzah? The words of the Gemara provide apparently conflicting implications.
The first part of Rebbi Yochanan's reasoning (that the Isur Kares should be removed from all of the brothers because initially any one of them could do Chalitzah or Yibum) implies that even before any brother performs Chalitzah, the Isur Kares is removed. On the other hand, the second part of his reasoning (that the Yavam and Yevamah who perform Chalitzah (or Yibum) act as Shelichim for the others) implies that it is the act of Chalitzah which removes the Isur Kares, and until that act is done the Isur remains in force.
(a) TOSFOS (10b, DH Ihu) implies that the prohibition of "Eshes Ach" remains in force until Chalitzah is performed, at which time the act of Chalitzah removes the prohibition. Rebbi Yochanan -- who says that when the wife falls to Yibum any brother may perform Chalitzah -- does not mean that there is no prohibition of "Eshes Ach," but rather that it is logical that the Torah would not give a Mitzvah to the brothers from which they could excuse themselves and pass on to another brother. Rather, the brothers never actually remove themselves from the obligation. Whichever brother performs Chalitzah (or Yibum) does so on behalf of all of the other brothers.
This also seems to be the opinion of RASHI (52a, DH Nasan), who calls the Yevamah an "Eshes Ach" even during the period of Zikah.
Support for this approach may be adduced from the opinion of Aba Shaul (39b). Aba Shaul disagrees with the Rabanan and maintains that performing Chalitzah is preferable over performing Yibum, because one who performs Yibum with impure intentions "is considered as though he lives with an Ervah, and the child is virtually a Mamzer." If the prohibition of "Eshes Ach" is removed at the time the woman falls to Yibum and before Yibum is done, there should be no prohibition of Ervah whatsoever and no reason to say that the child is close to being a Mamzer. (See also Insights to Yevamos 7:1:b.)
(b) However, the RASHBA (41a, end of DH Shomeres Yavam) writes that Rebbi Yochanan's statement, "If this [brother] wants to do Chalitzah, then he may do it, and if this one wants to do Chalitzah, then he may do it," implies that the prohibition of "Eshes Ach" actually falls away as soon as the brothers become permitted to perform Yibum.
According to the Rashba, why does Rebbi Yochanan add that the brother acts as a Shali'ach on behalf of the other brothers? Even if he does not perform Chalitzah or Yibum on their behalf, the prohibition of "Eshes Ach" has already been removed from them!
Moreover, how does the Rashba understand the opinion of Reish Lakish who says that all of the other brothers are prohibited to the woman with an Isur Kares when one brother performs Yibum with her? The Rashba cannot explain that the Isur Kares falls away and then returns to the other brothers when one brother performs Yibum, because the Rashba himself asserts that once the prohibition of "Eshes Ach" is removed it cannot return.
The Acharonim offer two approaches to answer these questions. The simple approach is that the reason why Rebbi Yochanan says that one brother acts as a Shali'ach for the others is not to explain why the prohibition of "Eshes Ach" is removed (because it is not removed when the brother performs Yibum, but earlier, at the time the woman falls to Yibum). Rather, when Rebbi Yochanan says that one brother acts as a Shali'ach for the others his intent is to explain why the prohibition of "Lo Yivneh" takes effect for the other brothers. Although the verse implies that the prohibition of "Lo Yivneh" applies only to the brother who performed Chalitzah (and prohibits him from attempting to "rebuild" his brother's family), Rebbi Yochanan says that the prohibition of "Lo Yivneh" applies to all of the brothers (and Tzaros) because of the Shelichus. (This approach is difficult to read into the words of the Gemara.)
How does the Rashba understand the opinion of Reish Lakish? The Rashba apparently understands that Reish Lakish indeed maintains that the prohibition of "Eshes Ish" could return even if it was removed at the time the Yevamah fell to Yibum. Therefore, when one brother performs Chalitzah or Yibum, the prohibition returns to the other brothers. (This also appears to be the intention of the Rashba to 44a, DH v'Nachlotz, as printed in the Mosad ha'Rav Kook edition.)
A second approach is suggested by RAV ELCHANAN WASSERMAN Hy'd in KOVETZ HE'OROS (4:9 and 1:7). From various sources it seems that when one brother performs Yibum or Chalitzah, his act determines retroactively that the other brothers were not involved with the Zikah at all (see Insights to Yevamos 18:1, 24:1, and Imrei Moshe, end of #5). Perhaps this is Reish Lakish's intention when he says that the other brothers are prohibited to the Yevamah with an Isur Kares. Once one brother has performed Yibum, it becomes determined retroactively that he was the only one who was permitted to her. To which brother the Heter applies becomes known only after the Heter is actually utilized by one of the brothers.
Rebbi Yochanan also agrees that, in theory, the Zikah would be retroactively removed from any brothers and Tzaros not involved in the Chalitzah. However, he maintains that because of the Shelichus, they are all considered to be involved in the Zikah even retroactively, and thus the prohibition of "Eshes Ach" is removed from all of them. (According to the proposal that Rebbi Yochanan agrees that Zikah can be removed retroactively, it is not clear what he tries to prove from the words, "If this [brother] wants to do Chalitzah, then he may do it." How does Rebbi Yochanan prove from those words that the Zikah applies retroactively to all of them? Also, the Rashba clearly states that even when one brother can no longer do Yibum, the Yevamah is still permitted to him. This is contrary to the logic which Rav Elchanan applies to Reish Lakish's opinion.)
Another problem with the opinion of the Rashba is why the Gemara needs a verse to prove that the brother may remarry the Yevamah (with whom Yibum has been performed) after he divorced her (8b). His allowance to remarry her should be obvious if the prohibition of "Eshes Ach" can never return to the Yavam. Perhaps the Rashba maintains that it is only after the above verse is expounded that the Gemara understands that the prohibition of "Eshes Ach" is removed permanently once the Yevamah falls to Yibum.
Another possible explanation is that the Rashba accedes that after Yibum (or Chalitzah) is performed, the prohibition of "Eshes Ach" can return. Since the prohibition can return, a verse is necessary to teach that the Yavam may remarry the Yevamah (with whom Yibum was performed) after he divorced her. If this indeed is the view of the Rashba, it also explains why Reish Lakish can posit that the brothers become prohibited to the Yevamah with an Isur Kares, and why Rebbi Yochanan needs to introduce the concept of Shelichus.
As for how the Rashba adduces support for his opinion from the Gemara, perhaps he merely intends to show that there is a logical reason to assume that once the prohibition of "Eshes Ach" is removed, it remains permitted as long as possible (until Yibum according to Reish Lakish, and even after Yibum according to Rebbi Yochanan).
How does the Rashba understand Aba Shaul's statement (that it is better to do Chalitzah than Yibum because Yibum with impure intentions "is considered as though he lives with an Ervah")? The Kovetz He'oros explains that either the Rashba discusses only the opinion of the Rabanan, or he understands that Aba Shaul's statement expresses only a Halachah d'Rabanan and not a Halachah d'Oraisa.
In conclusion, there is a basic difference in understanding among the Rishonim with regard to whether the prohibition of "Eshes Ach" is removed at the moment the woman falls to Yibum (RASHI and TOSFOS) or whether it is removed only at the time of Chalitzah or Yibum (RASHBA). (See also Insights to Yevamos 20:2 and 20:3.)
This dispute may have other Halachic implications. For example, the Gemara (54a) states that if the Yavam unknowingly has relations -- before he has performed Yibum -- with his deceased brother's wife (for example, he was asleep during the act), no Kinyan takes effect. According to Rashi and Tosfos, she should become disqualified from eating Terumah since she has had a forbidden relationship with an Ervah. According to the Rashba, the act was not forbidden at all, and thus she should remain permitted to eat Terumah and to marry a Kohen. (See, however, Insights to Yevamos 35:2.)