YEVAMOS 35 (10 Nisan) - This Daf has been dedicated Dr. Avi Pandey of KGH, L'iluy Nishmas Hagaon Rav Matis (Matisyahu ben Alexander Zishe Meyer and Rochel Leah) Blum zt'l, author of the acclaimed Torah la'Da'as series and beloved Rav and Marbitz Torah in Queens, NY, who was Niftar on 10 Nisan 5780.


The Mishnah teaches that if a man is childless when he dies but his widow is pregnant and later gives birth to a child, but the child dies within thirty days of birth, the child is deemed to have been a stillborn ("Nefel") and the woman is obligated to do Yibum.
Based on the teaching of this Mishnah, the ME'IRI (Yevamos 17a) offers an ingenious insight into the actions of Shlomo ha'Melech. (See also DERASHOS IBN SHU'IB to Parshas Mishpatim, SHEMEN ROKE'ACH (by the author of SHA'AR HA'CHAZAKOS) in his introduction, and YEDEI MOSHE to Shir ha'Shirim Rabah 1:1:10).
The Navi relates that when Shlomo ha'Melech was twelve years old, Hash-m promised to grant him immense wisdom; he would be the wisest man ever to live (Melachim I 3:12). To illustrate that Hash-m fulfilled His promise, the Navi relates an incident in which Shlomo arbitrated a complicated dispute and resolved the case with his immense wisdom.
Two women came to the king with a dispute over a child. One woman claimed that the child was hers, while the other woman claimed that the child was hers. The Navi records in detail each woman's claim:
"One woman said: 'My master, I and this woman dwell in the same house, and I gave birth while with her in the house. On the third day after I gave birth, this woman gave birth as well. We live together -- there is no outsider with us in the house; only the two of us were in the house. The son of this woman died that night, because she reclined upon him. She arose during the night and took my son from my side while I was asleep, and laid him in her bosom, and her dead son she laid in my bosom. When I arose in the morning to nurse my son, behold, he was dead! But when I observed him [later on] in the morning, I realized that he was not the son to whom I had given birth!'
"The other woman replied: 'It is not so! My son is the live one, and your son is the dead one.' But the first woman said, 'It is not so! Your son is the dead one, and my son is the live one!' And they went on speaking before the king.
"The king said, 'This one claims: My son is the live one, and your son is the dead one. And the other claims: It is not so -- your son is the dead one, and my son is the living one.'
"So the king said, 'Get me a sword!' and they brought a sword before the king.
"The king said, 'Cut the living child in two and give half to one and half to the other.'
"The woman whose son was the live one turned to the king because her compassion was aroused for her son, and she said, 'Please, my master, give her the living baby, and do not kill it!' But the other one said, 'Neither mine nor yours shall he be. Cut!'
"The king spoke up and said, 'Give to her (the first woman) the living baby and do not kill it; she is his mother!'" (I Melachim 3:16-27)
There is an obvious difficulty with the narrative as it is recorded by the Navi. The dishonest woman obviously was interested in taking the child for herself, for that is the reason why the case was brought before the court. However, when the real mother offered to let the liar keep the child in order to spare its life, the liar refused and insisted that the court kill the baby -- "Neither mine nor yours shall he be. Cut!"
Why did she suddenly lose interest in having the child for herself? Moreover, although Shlomo's wisdom gave him the insight to foresee that one of the women would back down when she heard of his intention to kill the infant, how could he possibly have known that the other woman would react with an emphatic insistence on complying with the brutal "compromise"? Surely he should have assumed that the dishonest woman would respond, "Thank you -- you have finally admitted that the child is mine! I see that although you are cruel enough to steal my child, you are not so ruthless as to see him killed for your lie!" How did Shlomo plan to respond to such a reaction? Would the liar have walked away victorious?
The Me'iri explains the process of Shlomo ha'Melech's reasoning as follows. The Midrash (Koheles Rabah 10:16; Shir ha'Shirim Rabah 1:1:10) relates that the reason why both women were so desperate to have the living child declared theirs was that they were both potential Yevamos. The husbands of both women had died with no other living children. Whichever woman would be judged to be the childless woman would not only lose the infant, but would also be stranded in the unpleasant situation of a Yevamah, bound to marry the brother of her deceased husband. Another Midrash relates that the husbands of the two women were a father and his son. Hence, one woman was the mother-in-law of the other.
Based on the facts related by the Midrashim, a telling scenario emerges. The two women -- the mother-in-law and her daughter-in-law -- had just become bereaved of their husbands, and each one needed a living child to exempt her from Yibum. Both women birth to babies. Before thirty days had passed since their birth, one baby died, as the verse states. The death of the child meant that his mother now became subject to the laws of Yibum. This was the motivation of the dishonest woman in her attempt to kidnap the other woman's child.
Shlomo ha'Melech understood that if the mother-in-law's child was the child that died, the mother-in-law would have had no reason to try attempt to seize her daughter-in-law's child. If the living child was not her own child, at least it was her son's child, and a man's grandchild suffices to exempt a woman from Yibum (Yevamos 70a). Only the daughter-in-law had a motive to lie and to claim that the child was hers. If her baby had died within thirty days of birth, then her husband died childless and she is bound to her husband's brother as a Yevamah.
Who was the brother of the deceased husband? The brother was none other than the living baby, her mother-in-law's child and her deceased husband's brother! This baby was the only living brother of her husband; there were no other older brothers because, as the Midrash points out, the mother-in-law was a potential Yevamah herself. The daughter-in-law's husband had no living children except for the baby in question.
Since her brother-in-law was a newborn infant, the daughter-in-law would need to wait thirteen years before this brother would be able to perform Chalitzah with her and free her to marry others, since a minor may not perform Chalitzah (Yevamos 105b). Accordingly, she had a very strong motive to claim that the living baby was her own child.
Shlomo ha'Melech realized all of this. He understood that since the only one with a strong motive to lie was the daughter-in-law, the child must really belong to the mother-in-law. In order to confirm his deduction, he ordered that the child be cut in half. What would the cutting of the child accomplish?
If the child were to be killed, the daughter-in-law would be freed from her obligation of Yibum since the living baby was her only brother-in-law. In fact, from the daughter-in-law's perspective, killing the child would be an even more ideal solution than taking the child for herself. Although by kidnapping the child she might convince the court that she was not a Yevamah, she would always know that the child was not really hers and that she was not permitted to remarry until Chalitzah was performed. By having the baby killed, however, she would be fully released from the obligation of Yibum! This is the reason why the daughter-in-law suddenly lost interest in keeping the child when she saw that Shlomo ha'Melech was ready to kill the child. The death of the child would serve her interests far better than taking the child for herself. Hence, "Cut!" she insisted.
Shlomo ha'Melech foresaw that this would be the woman's reaction to his suggestion. By manipulating the situation in such a way that the woman would be led to make such a seemingly ludicrous statement, Shlomo ha'Melech revealed her true intentions and he demonstrated beyond any doubt that the daughter-in-law was lying.
QUESTION: Rebbi Yochanan and Reish Lakish disagree about whether Yibum and Chalitzah performed with a pregnant Yevamah ("Me'uberes") takes effect in the event that the baby she is carrying dies. According to Rebbi Yochanan, if the baby born later dies within thirty days of birth, the baby's death shows retroactively that the father was childless, the obligation of Yibum was in force ("Tigli Milsa l'Mafrei'a"), and the Yibum or Chalitzah which the woman did while pregnant was effective (see Chart). Reish Lakish argues that the obligation to do Yibum cannot be determined retroactively, and thus the act of Yibum or Chalitzah she did at that time was ineffective.
The Gemara cites proof for Rebbi Yochanan's opinion from the Mishnah. The Mishnah teaches that if a Yavam performed Yibum with a pregnant Yevamah and the baby died shortly after birth (acquiring the status of a stillborn), the Yavam may remain married to the Yevamah ("Yekayem"). This ruling demonstrates that Yibum with a Me'uberes is effective. Reish Lakish responds that "Yekayem" means that the Yavam must first perform another act of Yibum with her (since the first act was not valid) and only then may he remain married ("Yachzor v'Yiv'ol v'Yekayem").
It is clear from the Mishnah that if the Yavam performed Yibum with the Me'uberes and the baby died shortly after birth, the Yavam and Yevamah are not obligated to bring a Korban Chatas for their act of relations even though they did not fulfill the Mitzvah of Yibum at that time, according to Reish Lakish. Why, though, are they not Chayav? Since the act of Yibum was invalid, the Yavam had relations with a woman who was forbidden to him because of "Eshes Ach she'Lo b'Makom Mitzvah." They should both be obligated to bring a Korban Chatas.
ANSWER: TOSFOS (DH Tigli) and other Rishonim explain that, according to Reish Lakish, although the Mitzvah of Yibum does not take effect when the Yevamah is pregnant, nevertheless the prohibition of "Eshes Ach" is not in force. This is because it becomes clear, when the baby dies, that the woman was bound to do Yibum with the Yavam, an obligation which began from the time her husband died.
Tosfos cites proof for his assertion that when a Yavam has relations with a Yevamah in a way which does not qualify as Yibum, nevertheless his act is not considered a forbidden act of relations with an "Eshes Ach." The Mishnah later (111b) states that if a Yavam who is a minor (who cannot fulfill the Mitzvah of Yibum until he reaches adulthood) lives with a Yevamah (who is an adult), they may continue living together until he reaches adulthood, at which time he may marry her through Yibum and fulfill the Mitzvah. The fact that the woman is not forbidden to live with the minor before he becomes an adult shows that an act of relations with a Yevamah which does not qualify as Yibum is nevertheless not considered a transgression of the prohibition of "Eshes Ach."
This principle may be understood in light of the opinion of the RASHBA (see Insights to Yevamos 7:1:a, 10:1:b, and 20:3). The Rashba maintains that at the moment the woman falls to Yibum, the prohibition of "Eshes Ach" is removed completely and from that moment onward the woman is not forbidden to the Yavam. Whether or not they fulfill the Mitzvah of Yibum, relations are permitted. Accordingly, in the case of Yibum with a Me'uberes and in the case of a Yibum with a Yavam who is a minor, there is no prohibition of "Eshes Ach."
(Even Tosfos may agree with this approach. Tosfos equates the Mitzvah of Yibum with the principle of "Aseh Docheh Lo Sa'aseh" (see Insights to 7:1:b) and explains that the prohibition of "Eshes Ach" is removed entirely so that the Yavam may fulfill the Mitzvah of Yibum with the Yevamah. Once the prohibition is removed for the sake of the Mitzvah, it remains removed entirely from the object (or, in this case, the woman) even when the Mitzvah is not fulfilled. A similar concept exists with regard to the Mitzvah to place Tzitzis on a garment of Sha'atnez; see Tosfos to Kesuvos 40a, DH Kegon. Since the Torah suspends the Lo Ta'aseh of Sha'atnez for the Mitzvah to make Tzitzis with Techeles, the Lo Ta'aseh is also suspended even where it is not necessary for the Mitzvah of Techeles, such as when one uses Sha'atnez for the white threads alone.)
However, RASHI (52a, DH Nasan Lo) writes that the reason why an ordinary form of Kidushin (Kesef or Shtar) cannot take effect between a Yavam and a Yevamah is that Kidushin cannot take effect with an "Eshes Ach." The Torah permits a Yavam only to do Yibum, but not to marry the woman in the same manner in which one marries any other woman. Rashi implies that the Yevamah is still forbidden as an "Eshes Ach" even after she falls to Yibum. Why, according to Rashi, is there no obligation to bring a Korban Chatas when the Yavam performs Yibum with a Me'uberes (according to Reish Lakish), and why is a minor permitted to live with an adult Yevamah (in the case of the Mishnah later, 111b)?
The Gemara here clearly implies that there is no actual prohibition of "Eshes Ach" after the woman falls to Yibum but before Yibum is performed. What does Rashi mean when he says that normal Kidushin cannot take effect with a Yevamah because Kidushin cannot take effect with an "Eshes Ach"?
(a) Some Acharonim explain that when Rashi states that Kidushin does not take effect with a woman who is prohibited as an Ervah, this is not necessarily because the Isur, the prohibition, of Ervah prevents the Kidushin from taking effect. Rather, it does not take effect because of the "Shem" Ervah -- her title or status as his relative. Rashi (52a) does not mean that a Yevamah remains prohibited with an Isur of "Eshes Ach" before the actual Yibum is done, but that she is still considered an "Eshes Ach" (for that is the reality of her relationship to him; she is the wife of his brother) even though the Isur is no longer in effect and the Yavam is permitted to live with her (because the Torah permits one to live with his "Eshes Ach" in a situation in which the Mitzvah of Yibum applies). (See KOVETZ HE'OROS 3:3-4.)
(b) The CHIDUSHIM U'VI'URIM (3:1) explains Rashi's intention differently. Rashi does not mean that she is an "Eshes Ach" even after she falls to Yibum. Rather, Rashi means that she was an "Eshes Ach" before she fell to Yibum, and the Torah removed the Isur of "Eshes Ach" at the time she fell to Yibum. It is logical to assume that the Torah removed the Isur of "Eshes Ach" only in order for her to do Yibum; the Torah did not intend to permit the Yavam to effect a normal Kidushin with her. Therefore, although the Isur of "Eshes Ach" is no longer present, nevertheless Kidushin cannot take effect with her because the laws of Yibum require that an act of Yibum be done, and they preclude the possibility of acquiring her through normal Kidushin.
According to both explanations, Rashi and the Rashba are in agreement about the status of a Yevamah at the time she falls to Yibum: as long as there exists an obligation of Yibum, there exists no Isur of "Eshes Ach" between the Yavam and Yevamah. Rashi and the Rashba also agree that if the Yavam does Yibum and then divorces her, a special verse is needed to teach that the allowance to marry her is extended and she is not an "Eshes Ach" to the Yavam after the divorce (8b). The only possible point of dispute between Rashi and the Rashba is a case in which the Mitzvah of Yibum or Chalitzah has not yet been fulfilled, and one of the brothers becomes exempt from fulfilling the Mitzvah for some reason. Is the Isur of "Eshes Ach" still removed (Rashba), or is the Isur of "Eshes Ach" reinstated such that it takes effect again (Rashi)?
(c) Perhaps Rashi maintains that if Yibum is eventually performed by the brother who lived with the Yevamah prior to Yibum (in the case of the Mishnah here, if he performs Yibum after the Me'uberes gives birth to a stillborn, or in the case of the Mishnah later (111b), if the minor becomes an adult and fulfills the Mitzvah of Yibum with his wife), all of the previous acts of relations he had with her are considered preliminary and preparatory acts to the Mitzvah of Yibum. They are considered to have been part of the Mitzvah, and thus they do not constitute transgressions.
This may explain why the Gemara insists that according to Reish Lakish, the brother who lives with the Me'uberes must perform Yibum after she gives birth to a stillborn.
(d) Rashi may follow the opinion expressed by the RITVA here in the name of the RE'AH (or MAHARAM according to an alternate Girsa). The Ritva asks why Reish Lakish does not accept the apparently obvious logic of Rebbi Yochanan, that there is a "Giluy Milsa l'Mafrei'a" that the Yevamah was obligated to do Yibum once her baby turns out to be a stillborn. For all other Torah laws, a stillborn is retroactively considered not to have been a viable child. Why, then, is the act of Yibum not valid retroactively?
The RITVA gives two answers. He explains in the name of the RE'AH that since, at the time of Yibum, the baby might not have possessed the mortal defect which eventually caused it to die, the act of Yibum with the woman could not have been a valid Yibum -- the woman was carrying a healthy child at the time. Even if she falls to Yibum retroactively when the child dies, the act of Yibum does not become valid retroactively, because at the time it was done the woman was carrying a healthy child; the defect formed only after the act was done.
In his second answer, the Ritva says that relations with the woman cannot be considered a valid act of Yibum when there is no way for the Yavam to know for certain, at that moment, whether the woman is obligated to do Yibum.
The difference between the two answers is whether Reish Lakish maintains that the act of Yibum certainly did not take effect, or whether he maintains that there is a doubt and no way to determine whether or not it took effect. If the latter is true (as the Re'ah posits), the Yavam may not be obligated to bring a Korban Chatas because there is a strong possibility that the child was not viable at the time of Yibum (since it turned out to be a stillborn).
In the case of the minor who performed an act of Yibum with an adult Yevamah, Rashi may understand that Yibum of a minor does take effect mid'Oraisa (if he is at least nine years old), and only mid'Rabanan must he wait until he reaches adulthood. Accordingly, the Yevamah transgresses no Isur d'Oraisa when she continues to live with him before he reaches adulthood. (See TOSFOS to Kidushin 19a, DH umid'Oraisa, and Insights to Yevamos 39:2.) (M. Kornfeld)