Tosafos points out that although we need a pasuk to be matir remarriage after divorcing a yevama, we don't need a pasuk to be matir the 2nd biah, yet when it comes to a chayvei lavin i.e. a divorced women who falls b'yibum to a kohen, the first biah is permitted but the 2nd is not. Why? Tosafos answer is not so clear, but the Tosafos Yeshanim seems to say that if we are "matir" the issur by the first biah, it remains mutar bec. it is not logical that the torah would create an issur by the 2nd biah. But, by chayvei lavin where we are relying on aseh docheh lo s'aseh for the first biah, since the 1st biah is not permitted, rather it is "pushed off", the 2nd biah will be assur.
Tosafos doesn't seem to be saying this exactly. I pointed out from Tosafos earlier that mitzvaso bekach is not necessarily synonomous with "hutra". Therefore, Tosafos could hold that even by the standard case of yibum, although it is mitzvaso bekach, it is only dechuya, not hutra. So the question comes back, Why does the mitzvah of yibum push off the issur of eishes ach even by the 2nd biah, but by a divorcee to a kohen it will only push it off by the 1st biah? What does Tosafos mean by his answer?
1 comment:
i just posted today on your earlier comment that someone showed me that in קובץ הערות סימן ט Rav Elchanan says like you and brings your proof.
re here: even if מצותו בכך is not הותרה still in the main form of the mitzva which is a regular אשת אח its not מסתבר to say that you should divorce after the 1st ביאה as the mitzva is marriage reproduction, still in חייבי לאוין when we are using the mitzva of yibum to be דוחה the לאו its different
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