QUESTION: The Mishnayos earlier (25a, 25b) teach that a man who enabled a woman to get divorced from her husband is prohibited from marrying her after the divorce. The Chachamim were concerned that he might have had improper motives for permitting her to remarry and that he did not conduct the divorce procedure according to law. This Halachah applies in cases such as a Chacham who did not annul a woman's vow against her husband, thus requiring that she get divorced; a Shali'ach who brought a Get from abroad and testifies to its validity, thereby enabling the woman to remarry; a single witness who testifies that a woman's husband died, thereby permitting her to remarry. The Mishnah here (26a) teaches that if the Chacham, Shali'ach, or single witness was already married at the time he enabled the other woman to remarry, and later his wife died, he is permitted to marry the other woman.

The Gemara infers from the Mishnah that the facilitator of the divorce is permitted to marry the woman later only if his own wife died, but not if he divorced her. If he divorced his wife, the Chachamim suspect that he divorced her in order to marry the woman whom he permitted. The Gemara questions this inference from a Beraisa which states that even if he later divorced his own wife, he may still marry the woman whom he permitted.

The Gemara answers that his allowance to marry the woman he permitted depends on whether he was involved in a dispute with his own wife. The simple meaning of the Gemara is that if the Chacham divorced his wife because of a dispute they had at the time he permitted the other woman to remarry, he is prohibited from marrying the other woman because of the suspicion that at the time he permitted her he intended to divorce his wife, and he permitted her only in order to take her as a wife for himself. If, however, there was no discord between the man and his wife at the time he permitted the other woman, the Chachamim do not suspect that he permitted the other woman in order to marry her (because he presumably was content with his own marriage at the time). The Chachamim suspect him of improper motives only when he permits the other woman at the same time he seeks a new wife; they do not suspect that he will choose to end his presently contented marriage in order to marry the other woman.

RASHI (DH Ha), however, explains the Gemara differently. Rashi explains that when there was discord between the man and his wife at the time he permitted the other woman, the Chachamim permit him to marry her, since he was not aware of the other woman at the time his marital disharmony started. In contrast, when there was no discord between the man and his wife at the time he permitted the other woman, the Chachamim do not permit him to marry her later, when he divorces his wife, because of the suspicion that he harbored intention to marry her when he permitted her (and that is why he later divorced his wife). The Chachamim suspect that even though he was not seeking a new wife at the time he permitted the other woman, when he met her he became more interested in her than in his own wife and decided to end his present marriage in favor of a new one.

Why does Rashi explain the Gemara in this way? The Mishnayos imply that even when the Chacham was not married at the time he permitted the other woman and had no wife to divorce, he is not allowed to marry the woman because of the concern that he permitted her with improper motives -- even though he did no action that leads to that conclusion (other than marrying the woman). Why does Rashi explain that if the man was involved in an argument with his wife before he permitted the other woman, he is permitted to marry the other woman since there are no grounds to assume that his divorce of his present wife is because of the other woman? Even when he divorces his wife for a pre-existing reason, there still should be grounds to suspect that he had improper motives when he permitted the other woman!

Moreover, the NIMUKEI YOSEF (who explains the Gemara like Rashi) cites the Yerushalmi that says that if his wife was ill at the time he enabled the other woman to remarry, he may not marry that woman. What is the difference between a man who has a dispute with his wife, in which case he is not suspected of permitting the other woman with improper motives, and a man whose wife is ill, in which case he is suspected of permitting the other woman with improper motives? In both cases, there should be grounds to suspect that he permits the other woman with intention to marry her himself. (YAM SHEL SHLOMO 2:21; BEIS SHMUEL EH 12:8; VILNA GA'ON EH 12:9)

ANSWER: The KORBAN NESANEL (2:12:50) answers that the Mishnah here, which does not permit him to marry the other woman after he divorces his wife, nevertheless permits him to marry the other woman after his wife dies. If the prohibition against marrying the other woman applies where discord already exists between the husband and wife, then the law in a case where he divorces his wife should be the same as the law in a case where his wife dies; if the man expected that his wife would become divorced or die, he is prohibited from marrying the other woman since it is assumed that he had improper motives when he permitted her to remarry. Why, then, does the Mishnah limit the allowance to when his wife dies? It must be that there is a difference between death and divorce. In the case of divorce, even if he had no argument with his wife at the time he permitted the other woman to remarry, he is not permitted to marry that woman because he might have divorced his wife intentionally in order to marry the other woman.

Why, though, is the law more lenient in the case of divorce, in which the man (Chacham, Shali'ach, or witness) is permitted to marry the woman he permitted even though he was already quarreling with his wife? As the Nimukei Yosef writes, when his wife was sick at the time he permitted the other woman to remarry, he is not allowed to marry that woman. Why is it not logical to suspect him, in both cases, of harboring intention to marry another woman?

(a) The Korban Nesanel suggests that when discord exists between him and his wife, it is not assumed that he plans to divorce her; couples often argue with each other but do not always get divorced. If, however, his wife is very ill, it is assumed that he plans to marry someone else.

This logic, however, is problematic. The Yerushalmi does not discuss a situation in which his wife is deathly ill, but rather she is merely sick ("Cholanis"). The principle that "Rov Cholim l'Chayim" teaches that most sick people will survive (Gitin 28a). Accordingly, even if his wife later dies from her illness, it cannot be assumed that he had in mind to marry someone else at the time she was sick when he permitted the other woman to remarry. On the contrary, in the case of divorce, where there was marital discord which eventually led to the divorce, it should be assumed that he intended to divorce her all along, and thus he should be suspected of harboring intentions to marry the woman whom he permitted!

(b) Perhaps Rashi's intention is as follows. Rashi in the Mishnah (DH she'Hayu la'Hem) explains that when the Mishnah states, "they had wives but the wives died," it means that the wives died "after a long time" ("l'Achar Zeman"). What is Rashi's source for this explanation? Perhaps the Mishnah refers to any case in which the man's wife died, whether she died a long time after he permitted the other woman to remarry or she died shortly thereafter. How does Rashi know that the man's wife died specifically "after a long time"?

(It is unlikely that Rashi's intention is to explain the Chidush of the Yerushalmi, which says that if his wife was already sick and near death at the time he permitted the other woman to remarry, he may not marry the other woman. The Yerushalmi's ruling is unrelated to when she dies; it refers only to whether she was sick or not at the time her husband permitted the other woman to remarry.)

Perhaps Rashi's intention is to explain why the law is more lenient in the case of divorce, where the man is permitted to marry the woman he permitted even though he was already involved in a dispute with his wife. Rashi's words "l'Achar Zeman" refer not to the case of the dying wife, but to the case of divorce. Rashi means that the reason why the Mishnah omits the case of a man who divorced his wife is that if the man divorced his wife "after a long time," the Chachamim suspect that he had in mind to marry the other woman at the time he permitted her and he harbored that thought in his mind until some time had passed and the opportunity to divorce his wife without suspicion arose.

The Beraisa teaches that in such a case, if the man and his wife were involved in a quarrel at the time he enabled the other woman to remarry, he is permitted to marry the other woman when he divorces his wife after a long period of time passes. Since he was quarreling with his wife at the time he permitted the other woman, if he really had in mind to marry the other woman he certainly would have divorced his wife earlier and would not have let so much time pass. That he continued to stay married to her for so long shows that he really did not have in mind to divorce her, and when he permitted the other woman to remarry he did so with proper intentions.

This explains why Rashi says that the Mishnah refers to "l'Achar Zeman." If the wife would have died immediately after he permitted the other woman, the Beraisa would not have said that he is permitted to marry the other woman "even if he divorced his wife," because he would have been prohibited from marrying the other woman if he divorced his wife right away.

(c) The VILNA GA'ON (EH 12:9) disagrees with the Nimukei Yosef and asserts that the Yerushalmi does not state that in a case where one's wife is ill and then dies, he is prohibited to marry the other woman. Rather, even when his wife is ill when he permits the other woman to remarry, he may marry the other woman after his wife dies since he did not expect that his wife would die. Accordingly, in a case of divorce, even though he and his wife were quarreling at the time he permitted the other woman to remarry, he presumably did not think that their quarrel would lead to divorce.

The PISCHEI TESHUVAH cites the YESHU'OS YAKOV who suggests a similar approach. He asserts that even according to the Yerushalmi, a man does not expect his wife to die just because she is sick. Rather, the Yerushalmi means that when his wife is sick he needs another wife to tend to his needs, and that is why he is suspected of permitting the other woman with ulterior motives. Accordingly, there is no reason to suspect that when he and his wife were quarreling, he planned to divorce her merely because of the quarrel.

QUESTION: The Mishnah states that in the case of a man who enabled a woman to get divorced (such as the Chacham, Shali'ach, or single witness), the man may marry that woman if she first married someone else and then her second husband died or divorced her.

The Gemara explains that the Mishnah does not mean -- in the case of a single witness who enabled the woman to remarry by testifying that her husband died -- that the witness may marry the woman after her second husband dies (rather, only if he divorces her). Similarly, the Mishnah does not mean -- in the case of a Chacham or Shali'ach who enabled the woman to get divorced -- that the Chacham or Shali'ach may marry the woman after her second husband divorces her (rather, only if he dies). In these two cases, no third man is permitted to marry the woman because of Rebbi's ruling. RASHI explains that Rebbi ruled that "there is a Chazakah that she causes her husbands to die or to divorce."

It is clear from the words of Rashi that not only does a Chazakah of two dead husbands prohibit a third man from marrying her, but also a Chazakah of two divorces prohibits a third man from marrying her. This is also the implication of the Gemara which says that the Mishnah does not permit her to remarry after she was divorced twice.

Rashi's explanation, that a woman who was divorced twice is prohibited to marry a third time, is difficult to understand. Why do two divorces prohibit her to a third man? The Gemara later (64b) teaches that Rebbi's logic for prohibiting a woman after her two husbands died is because of "Ma'ayan Gorem" or "Mazal Gorem" -- either her Nidah flow is a physical factor which causes her husbands to die, or her inauspicious Mazal causes them to die. The Gemara says that a difference between the two reasons is a case in which her husband died after Erusin, before the woman moved into his home. According to the opinion that "Ma'ayan Gorem," the husband's death during Erusin does not count towards the Chazakah that she causes her husbands to die.

Rashi's explanation here apparently does not follow the reasoning of "Ma'ayan Gorem," because that reasoning applies only to a case in which the woman's previous two husbands died, not when they divorced her. The reasoning of "Mazal Gorem," in contrast, may apply to divorce: after two divorces, it is evident that the woman has an inauspicious Mazal that causes her to get divorced. According to Rashi, however, since "Ma'ayan Gorem" does not apply when the woman was divorced twice and "Mazal Gorem" does, why does the Gemara later not mention that the case of divorce is a difference between the two reasons? (VILNA GA'ON and BE'ER HETEV, EH 9:8)

Moreover, even if the woman has established a Chazakah that she causes her husband to divorce her, why does that Chazakah prohibit a third man from marrying her? At worst, she will get divorced a third time. Why should a third man be prohibited from marrying her?

ANSWER: Although the literal meaning of "Ma'ayan Gorem" does not apply to divorce, perhaps that reasoning does apply in a broader sense: the woman's physical nature is to blame for her recurring divorces (for example, she has an impetuous nature). Therefore, both the opinion that "Mazal Gorem" and the opinion that "Ma'ayan Gorem" maintain that two divorces gives her a Chazakah that she will be divorced again, either because of her Mazal or because her physical nature causes her to get into arguments which lead to divorce.

Why, though, is a third man prohibited from marrying a woman who has a Chazakah that she gets divorced? Perhaps the Gemara does not mean that he is prohibited by law to marry her, but that the Chachamim recommended ("Etzah Tovah") that a man not marry a woman who has been divorced twice (YASHRESH YAKOV). The Gemara means that the Chachamim would not tell the woman that she may marry a third man l'Chatchilah if doing so is discouraged and runs counter to the better judgment of the Chachamim.

QUESTION: Rav rules that when three sisters fall to Yibum to two brothers, one brother does Chalitzah with one sister, the other brother does Chalitzah with the second sister, and then both brothers must do Chalitzah with the third sister.

The Gemara infers from this ruling that Chalitzah with one's "Achos Chalutzaso" (the sister of a woman with whom he did Chalitzah) is considered a "Chalitzah Pesulah," and whenever a Chalitzah Pesulah is performed it must be done by all of the brothers in order to take effect and release the woman from the requirement of Yibum (because the bond of Zikah is too strong to be broken by a Chalitzah Pesulah).

A "Chalitzah Pesulah" is defined as a Chalitzah done by a brother who was not permitted to do Yibum. In Rav's case, the Chalitzah done with the third sister is a Chalitzah Pesulah because neither brother was permitted to do Yibum with her due to the Isur of "Achos Chalutzaso" (she is the sister of the women with whom each brother did Chalitzah).

RASHI cites an alternative Girsa in the Gemara (which he rejects). According to that Girsa, the Gemara infers from the beginning of the Beraisa that a Chalitzah Pesulah must be done by all of the brothers. The beginning of the Beraisa says that each brother does Chalitzah with one sister. Why may one brother not do Chalitzah with all of the sisters? It must be that once he does Chalitzah with one sister, all of the other sisters become prohibited to him because of "Achos Chalutzaso" (and, therefore, in order to release them from the bond of Zikah they need Chalitzah either from another brother who can do Yibum with them, or Chalitzah Pesulah from all of the brothers).

Why does Rashi reject that Girsa? The Gemara, according to that Girsa, seems to be no less of a valid proof that a Chalitzah Pesulah must be repeated by all of the brothers in order to release the Yevamah.

ANSWER: TOSFOS (DH mid'Ka'amrit), the RAMBAN, and other Rishonim explain that the second sister certainly needs to do Chalitzah with the second brother, even if a Chalitzah Pesulah does not need to be done by all of the brothers. This is because the second sister can do a perfectly valid Chalitzah with someone who is permitted to do Yibum with her -- the second brother. Everyone agrees that when she can do either a perfectly valid Chalitzah or a Chalitzah Pesulah, she must do the better Chalitzah. (As the Gemara teaches on 27a, if it is possible to do a good Chalitzah, then one may not do a Chalitzah Pesulah.) Therefore, the Gemara derives its proof from the third sister. Since none of the brothers can do a proper Chalitzah with her, she must do a Chalitzah Pesulah with all of the brothers.