question

I heard this question in name of Rav Brown (i am always skeptical to quote people by name on the blog from fear that I am misquoting or that they mind being quoted in the forum, stil...)
Rav Chaim famously says that an אונס is not a פטור but the reason he is פטור is because the מעשה is not מתייחס to the person. The depth is that not everything that a person does is really "him".
the question is then how can ביאת אונס work even with a pasuk, if it's not him?

Yevamos 58b - Is there any kind of bi'ah that is not koneh a Yevama?

The gemara cannot find a case of a shomeres yaveim who has had bi'ah with the yaveim and still remains a shomeres yaveim. In truth there are some cases, but for various reasons they don't meet the gemara's conditions. For example, Tosafos says that when the yaveim does not intend for bi'ah at all, he is not koneh her, yet it does not fulfill the gemara's condition of the bi'as ba'al preceding the bo'el, since the pesukim by sotah imply that the ba'al had intent for bi'ah before she was mezaneh with the bo'el.

But,

How many cases are there of a yaveim having bi'ah with a yevama and not being koneh her?

1. Any time he has not intent for bi'ah at all, as we see in the gemara 54a. This includes kavana to be matiach b'kosel, and falling from a roof, and when he is sleeping (acc. to tosafos).

2. Bi'ah with an eiver meis, tosfaos 53b says that even acc. to the opinion that you are chayev by arayos, you cannot be koneh a yevama (the gemara couldn't use this case on 58b - see aruch l'ner).

3. When he is sleeping, he is not koneh her bec. he is not a "bar da'as" (acc. to rashi). This peshat is just difficult in general bec. we see that a cheiresh and kattan (if not for a special pasuk in kiddushin 19), could be koneh even though they are not b'nei da'as.

4. We already discusses on this blog a discussion between R' Akiva Eiger and his son, if he has explicit intent to do bi'ah but not to be koneh her, whether he is koneh her. RA"E uses he gemara on 58b to prove that he would be koneh her even if he intends not to, so this one doesn't qualify.

5. RE"A on 53b discusses the possibility of requiring witnesses on the bi'ah similar to bi'as kiddushin where they are "l'kyumei davar" - create the kinyan, and not just as a verification that the event took place. Therefore, if the bi'ah of the yaveim to yevama took place without the presence of witnesses, it may qualify. But once again RA"E proves from 58b that one can be koneh a yevama with bi'ah even without any witnesses (he then disproves the proof, bec. it could be we wouldn't believe him that he had bi'ah with her and make her drink, unless the eidim can verify the bi'ah).

ANY MORE CASES?

Yevamos 57b - Chupah for Pesulos i.e. Chupas Nidah

Rashi says that the gemara is discussing chupah without kiddushin. Tosafos understands that Rashi learn the sugya that chupah works as kiddushin, the argument between rav and shmuel is whether chupah works by woman who is pasul from having biah with. Rav holds that chupah accomplished kiddushin and pasuls her (even acc. to r' elazar and r' shimon) since chupah by definition is closer to biah. Shmuel holds that chupah is never binding on a women who is forbidden to have biah with. The Ritvah understands in Rashi that the entire sugya assumes that chupah is not koneh, and both Rav and Shmuel agree that there is no binding cha'los from this chupah. Nevertheless, Rav holds that since she made herself available for bi'ah with someone who is pasul to her, we penalize her by pasuling her to terumah.

Tosafos understands that the gemara is speaking when there was kiddushin done in advance. Although everyone agrees that if she is widowed after kiddushin to someone who was pasul to her, she is not pasuled; and all agree that if she is widowed after bi'ah to a pasul she is a chalala and pasul; the machlokes is when she was widowed after kiddushin and chupa (but no bi'ah) to a pasul.

According to the first and third explanation, Rav and Shmuel argue whether chupah (even after kiddushin) would be binding to pesulos. According to the second peshat, there is no indication one way or the other whether chupah after kiddushin would be binding to pesulos. This is very applicable to a chupas nidah, since she is pasul to him at the time of chupah. Based on the first and third peshat, it is a machlokes Rav and Shmuel whether chupah would be binding on a nidah. Nimukei Yosef comments that we hold like Rav, chupas nidah is binding, to the exclusion of the Rambam's opinion (see Even Haezer siman 61:1). Some suggest that even those who consider chupas nidah valid, that is only if she will later become fit for bi'ah like a nidah, but a pesulah who won't be fit for bi'ah later, chupah would not be binding. Pischei Teshuva (E.H. 61:7) quoting Sha'ar Hamelech proves from the Nimukei Yosef who equates all pesulos with nidah, it is clear that even if she will not necessarily be fit later, chupah is binding on pesulos.

Yevamos 56a - Yibum of Cheiresh (deaf/mute)

The gemara is clear that when a cheiresh does yibum he is koneh her m'doraysa. The question is that according to the gemara earlier 54a that yibum is only koneh if one has in mind at least to do bi'ah, to the exclusion of being ma'tiach b'kosel and sleeping (acc. to tosafos), how can a cheiresh do yibum. Since we consider the da'as of a cheiresh to be worthless, he is not having kavana for biah which is needed even by yibum? Perhaps one could say that although a cheiresh doesn't have da'as when it comes to something significant, a small amount of da'as he still has, and therefore has the capacity to have da'as to do bi'ah, even though his intellect is not capable of da'as kinyan or da'as for mitzvos.

However, Tosafos Yeshanim 54a dealt with this question and explains differently. They explain that the requirement of da'as for biah is relative to the persons ability. A regular person who is capable of da'as for bi'ah, is required to have that level of da'as when doing yibum, otherwise he is not koneh. But a cheiresh who is not capable of having da'as even for bi'ah, can be koneh even without da'as. I find this to be a tremendous chiddush, bec. we usually have a minimum requirement for da'as. Where do we ever see that the amount of da'as the Torah requires depends on how much da'as you have?

Yevamos 55b - Gmar Biah for Yevama

Tosafos raises a contradiction between the gemara in kiddushin which implies that ha'arah does not work as biah for kiddushin, and in yevamos it says that it does work. Tosafos says that if he does only ha'arah then it works, but if he does a g'mar biah then he is only koneh at the completion of the biah since his da'as is on the g'mar biah. The Nemukei Yosef here and Ran in Kiddushin (brought in Beis Shmuel 166:6) writes that by a yevama even if his mind is on g'mar biah, he is already koneh at the time of ha'arah since his intent is not rellevant bec. even if they are both anusim he is koneh her.

However, Tosafos Yeshanim asks How can the gemara discuss whether the positive mitzvah of yibum will push off the issur of a widow to kohen gadol, the issur is violated at the time of ha'arah, yet the mitzvah of yibum is not performed until the g'mar biah, so it is not b'idnah. This question can be answered in many different ways. My point is to focus on the assumption of the question that yevama is only acquired with g'mar biah. It seems to me that the Tosafos Yeshanim understands that since the simple reading of the Torah "lehakim sheim" implies g'mar biah, we assume that a person who does a g'mar biah will have in mind to be koneh only with g'mar biah, and would not be koneh with ha'arah. Clearly, this is against the Ran and Nimukei Yosef, but the question is: Since da'as in not a factor, he should be koneh with ha'arah even if his mind is on g'mar biah (which is the proof of the Ran and Nimukei Yosef)?

Perhaps the chiddush of being koneh even o'nes is limited to a situation where he did not have intent to be koneh. But if he had explicit intent NOT to be koneh his yevama with biah, he would not be koneh her (i am not sure if this is true - any proofs for or against?). Therefore, when he does a g'mar biah the Tosafos Yeshanim understands that it is as if he has explicit intent to be koneh with g'mar biah and NOT ha'arah. That is why they assume that you are not koneh with ha'arah (not like the Ran and Nimukei Yosef).

Yevamos 54a - Giving up your life and Capital punishment

Sometimes when you are physically forced to do an issur, you are not doing the issur at all. For example if someone bends your body in front of avodah zarah, you are not doing the issur at all. Similarly, R' Chaim points out that if you are being forced to allow yourself to be thrown on a child, you are not doing the issur of retzicha at all. However, sometimes when you are forced, you are still doing the issur. For example if someone puts non-kosher food down your throat, you did the issur of eating issur just that you were physically forced (which is: 1. o'nes 2. passive). Similarly, if you are physically forced to commit adultery, you did the issur just that you were physically forced (R' Chaim asks how tosafos can compare a passive act of adultery to a passive act of murder since by adultery you committed the issur, but by murder you were just a weapon. see R' Elchonon 48 who explains Tosafos).

Tosafos assumes that the rules for yehareg v'al ya'avor are that if you are being forced to do an issur actively or passively doing an issur b'ratzon (willfully), you must give up your life. But if you are: 1. being forced to violate the issur and 2. passive i.e. karka olam, you do not have to give up your life. However, the rules for when you are liable for capital punishment is different. Originally (when Tosafos asks the question from yehareg v'al ya'avor) Tosafos holds that whenever you were supposed to give up you life and instead violated the issur, you are liable for capital punishment. But, Tosafos then changes that whenever you are forced, you are not liable for capital punishment. But if it was intentional you are liable for capital punishment, regardless of whether you were active or passive.

See First Comment

Yevamos 51b - Biah of a 9 year old

Rashi explains that reuven who was 9 did biah he would be koneh her, and if she then has biah with shimon (who was also 9) afterward, it would not assur her in reuven. Rashi asks that it should assur her just as any married women that commits adultery should be assur to the first. Rashi's answer doesn't make sense as Tosafos points out.

Tosafos asks specifically on Rashi that it should be similar to a shomeres yaveim that is mezaneh with someone from the street, that she becomes assur to her yevama. See Rashash who does not understand Tosafos question. R' Elchonon (43:1) explains that the yerushalmi says that acc. to abba shaul that biah for beauty results in a mamzer is bec. he holds like r' akiva that chayvei lavin make a mamzer, and when he has biah for beauty it is not a mitzvah of yibum so it is like yevama l'shuk. Similarly, a bias kattan since it can't be koneh mi'doraysa it is like yevama l'shuk which should pasul her. Based on this Tosafos is asking that the biah of Reuven when he is 9 should pasul her to Reuven himself, since it is the equivalent of her being mezaneh with someone from the outside.

Tosafos explains that the reason that the biah with shimon doesn't assur her to reuven is bec. it was not done willingly. However, the Rashba has a novel approach from the Ra'avad to answer the question. Even if the biah of reuven will be koneh her as a yevama, it will not create a state of ishus, since ishus does not apply to a child. Therefore, if she is mezaneh after yibum with reuven, she will not be assur to him.

Yevamos 49b - Moshe vs. Other Nevi'im

I always found Rashi's peshat in this gemara to be very insightful. The gemara implies that bec. Moshe's prophecy was with clarity he commented that no one can see Hashem, whereas Yeshaya who did not have clarity commented that he saw Hashem. The exact opposite should make sense! Rashi explains that Moshe had enough clarity to realize that what he was seeing was not Hashem, whereas Yeshaya who did not have clarity was fooled into thinking he saw Hashem even though he actually did not see Hashem. From Rashi we see that sometimes we can define clarity as knowing what we don't understand. For example, one can learn a sugya and comment "the whole thing makes no sense" - that is a lack of clarity. But one can learn the sugya and say "i understand everything except for these 3 points" - that is clarity. The greatness of Moshe is that he had an honest vision and knew what he was not understanding.
Perhaps this would be an alternate explanation to the gemara in chagiga 13b that differentiates between the prophecy of Yeshaya and Yechezkel (aside from rashi and tosafos), that the elaborate details of Yechezkel are indicative of a non-clear vision, where he thought that he saw what he described but didn't even realize he wasn't seeing what he thought he was. Yeshaya who did not elaborate was less fooled by his nevuah than Yechezkel.

Yevamos 49b - Uprooting the Kiddushin

Rashi by sotah seems to view kiddushin as an ongoing process, so that when there is a contradiction between ervah and kiddushin, the kiddushin is automatically broken. So, if there is not tefisas kiddushin by a sotah (meaning she would be like an erva) then her marriage would automatically dissolve when she is mezaneh, from the fact that she is still married and needs a get, we see that there is tefisas kiddushin by a sotah. Tosafos asks, if so then by nidah why would we need a special pasuk saying that there is tefisas kiddushin, we should understand from simple logic that there is tefisas kiddushin from the fact that kiddushin does not dissolve when she becomes a nidah? A simple answer could be that perhaps by nidah kidushin would dissolve (if not for a pasuk teaching that there is tefisas kiddushin), but by sotah since we know she needs a get, clearly kiddushin does not dissolve, and from that we derive that there is tefisas kiddushin.

Another answer is that although it is obvious m'sevara that if kiddushin would not be tofeis by a sotah, it would automatically dissolve, that is bec. she will never again be mutar to her husband. But by a nidah where she won't be assur forever and will later become mutar to her husband, we wouldn't say m'sevara that the kidushin will dissolve.

Yevamos 48b - Tosafos: Rejecting Avoda Zarah

Tosafos d.h. r' eliezer, points out that according to r' akiva part of the process of yefas toar is to reject avoda zarah. Tosafos says that this would not fit with the braisa 47b that the entire process of yefas toar is without kabalas hamitzvos, but if there is a kabalas hamitzvos you would do a standard conversion. Tosafos clearly assumes that rejecting avoda zara is the same as kabalas hamitzvos. Why? Does Tosafos assume that all that is needed for kabalas hamitzos by a ger is rejecting avoda zara (but not necessarily does there have to be an acceptance of other mitzvos), or does Tosafos assume that the rejection of avoda zara requires with it an acceptance of all mitzvos?

Yevamos 48 - Kabalas Hamitzvos for an Eved - Delaying Geirus

1. 48a - Rashi learns the entire machlokes between rsb"e and chachamim to be whether the tevilla to set him free must be accompanied by kabalas hamitzvos, but the tevillas avdus certainly would not need kabalas hamitzvos (see Rosh end of siman 38). The sources from the pesukim by milah are difficult since they refer to the point on becoming an eved, not becoming free (see karnei r'eim on maharsha for a dochek peshat). However, based on rashi the distinction between yefas to'ar and eved is that by yefas to'ar where you are trying to make her into a jew by going the the steps of becoming an eved and setting her free within a few hours, she must have a kabalas hamitzvos when you set her free (the same would be for a regular eved that you try to do expedite the process would need kabalas hamitzvos). But, generally an eved will become an eved kenani, keep mitzvos like a women in your home for 20 years and then you will set him free. Since he had the training in mitzvos for 20 years (or whatever amount of time) he doesn't need kabalas hamitzvos. I once asked, why does a bar mitzvah boy not need kabalas hamitzvos like a ger? The answer is that he is like the eved who was trained for years in the keeping of mitzvos, so the transition is seamless even without formal kabala.

2. 48b - When the gemara says that converts are punished for not converting sooner, the ya'avetz explains that they can't be punished for not making a decision to convert until now, because they had not chiyuv to convert. Rather they are punished for delaying the process from the time they made their decision to convert (with this he answers tosafos question, that although Ruth may have been old, she didn't delay from the moment she made a decision). This would also explain why the braisa 47b says that when he accepts we do milah immediately not to delay the mitzvah. Perhaps the problem with delay is not from the perspective of beis din, but rather we encourage the process to mover quickly so that he will not be punished for delaying the process.

רות

rabbi resiman asked in his Navi shiur:

what is the whole issue of Rus being a מואביה the gemara says that she was the daughter of Eglon and the granddaughter of Balak, and we know from Rashi in chumash that Balak was a מדיני and since by a goy we go after the father comes out she wasn't a מואביה but a מדינית?
we can answer based on tosfos 48b

..." וי"ל דבת בנו של עגלון לאו דוקא אלא כלומר דמזרעו היתה כמו בן בנו של נמרוד הרשע (חגיגה יג..."

ולפ"ז ניחא שהיתה מואביה שלא היתה בן אחר בן, ושם בחגיגה ביאר התוספות שג"כ לאו דווקא שלא היה מזרע כוש, וכן הכא בדומה לא חייב שתהיה בן אחר בן.

Yevamos 47a - Accepting Mitzvos

The gemara mentions that we have to tell the potential convert about mitzvos "some light mitzvos and some stringent mitzvos", when he accepts we then do milah, wait for it to heal, then do tevillah and once again tell him about "some light mitzvos and some stringent mitzvos", he then leaves the mikvah and is a full fledged Jew.

It is not so clear to me at which stage he actually is doing the kabalas hamitzvos. The gemara explains that the first time we tell him about mitzvos it is for the purpose of a deterrent, to try and get him to change his mind from conversion (Meiri points out that even telling him the light mitzvos serves as a deterrent bec. it implies that the religion is about insignificant details). This would indicate that the first time we tell him about mitzvos it is not for the purpose of a true kabalas hamitzvos. Furthermore, Rashi seems bothered by this and comments that the real kabalas hamitzvos must take place while he is in the water at the very last stage, as he is about to become a jew. A further proof that the kabalas hamitzvos occurs the 2nd time, not the first, is that the gemara only mentions the 2 talmidei chachamim (which is really 3 as the gemara clarifies) who serve as the beis din are only involved in the later stage. Tosafos 45b explained that the function of the beis din is for kabalas hamitzvos (not tevilla), so it seems clear the the kabalas hamitzvos is really happening the second time, not the first.

Why then does the gemara say "kibel" - if he accepts then we do milah, which implies that the kabalas hamitzvos is before the milah? Perhaps that "kibel" simply means that he wants to continue but does not formally do a kabalas hamitzvos in front of a beis din.

Yevamos 46a - Bishul Akum - Geirus without Milah

1. Does something qualify as being able to be eaten raw and therefore not a problem of bishul akum, if it can be prepared to be eaten raw but instead was cooked? Meaning do we say that since salmon can be eaten raw by salting it i.e. lox, salmon that is cooked by a goy is not bishul akum? It seems from Tosafos that eaten raw must be an achila chashuva, and the proof is that meat that is salted although it can be eaten raw, it is still a problem of bishul akum. If it would be considered an achila chashuva to eat raw salted meat, would Tosafos say that there is no issur at all of bishul akum on meat! It seems clear that even if salted meat would be an achilah chashuva, Tosafos would say that salted meat is not bishul akum. Also, logically the heter is bec. the non-jews involvement in something that could have been eaten raw is considered insignificant. This would only apply to an item that could have been eaten prior to cooking as is, and was then cooked, but we certainly would not say that since it could have been prepared some other way without using heat, it can now be eaten when a non-jew cooked it. Therefore, Tuna fish that is cooked by a non-jew should be a problem of bishul akum, even though some eat small amounts of it while wrapped in seaweed and rice.

2. Tosafos 46b (d.h. drabbi yossi) discusses one who had their "gid" cut off, whether they can convert since milah can't be performed. It seems clear from the gemara in Avoda Zarah 27a "a women is like she is mahul", that the absence of an orla is tantamount to actually having a bris. However, this is only true if we assume that a ger who converts after being circumcised does not need hatafas dam (rabbeinu chananel). But according to the Behag who makes a distinction that a previously circumcised ger who had the status of an orel needs hatafos dam, but a child who was born mahul does not need hatafas dam since he never had status of an orel. Based on the Behag, one can argue that a women "is like she is mahul" bec. she never had the status of orel similar to a child born mahul, but one who had their gid cut off is like a goy who was circumcised prior to conversion who had the status of orel and needs hatafas dam. One could argue that since he has no gid and hatafas dam can't be done, he cannot convert. That is why Tosafos after quoting the Behag needs to be mechadesh that when hatafas dam is impossible i.e. when his gid was cut off, he can still convert.

Kinyan Haguf

When speaking of Kinyan Haguf of a slave we are use to associating it with Kinyan Issur, in this sugya, however, we see this is not so. The Gemara will say that if one acquires a slave from a goy he doesn't aquire a kinyan haguf, BUT if a Goy sells himself then the owner gets a kinyan Guf in him even before he goes to mikveh.
I found the Minchas Chinuch says (347:2) that the Halachic Nafka Mina is for that apply to "his hand is the maters hand"... needs thought... See also Kesef Mishne Avadim 9:4 for this type for concept that a goy can have a kinyan guf in a slave in some cases.

a nation similar to a donkey

I was asked: Rashi brings that one cannot marry a slave from the Hekesh of the nation which is similar to a donkey; why don't we say from this Hekesh that relations with a slave is like relations with a donkey and is forbidden with a capital punishment?
I found this question very intriguing, I posed it to a Talmid Chacham and this is what he answered:
The Drasha uses the word in the pasuk meaning "with" (im) and changes it to "nation" (am), and therefor the hekesh is limited to concepts of nationhood and therefor won't apply to the act of the relations but to the status of marriage and togetherness that they have,
any thoughts?

Yevamos 44a - Oleh L'chalitzha Oleh L'yibum

The gemara says a rule that all who are bound for yibum are bound for chalitzah, but all who are not bound for yibum are not bound for chalitzah. Tosafos assumes that there is also a rule that all who are not oleh l'chalitzah are not oleh l'yibum. Although the gemara never made such a statement, if we follow the rules of logic it is nonetheless true. The rules of logic are that the contra positive is always true, namely "If A then B = If not B then Not A". Since All who are oleh l'yibum are oleh l'chalitzah, therefore All who are not oleh l'chalitzah are not oleh l'yibum. This is why Tosafos assumption is correct (obviously this only works since the definition of "If A then B" is not that the only way to achieve B is A, rather that if one does A they will definitely achieve B so it is impossible to do A and not achieve B, therefore if one did not achieve B that is bec. they did not do A).

On a more lomdush note:

Tosafos says that although if one is not eligible for chalitzah they are not eligible for yibum, a deaf/mute is eligible for chalitzah just impossible for him to perform it, and he therefore is eligible for chalitzah. R' Akiva Eiger (Mishnah Sanhedrin chapt. 2 os 7) asks that a king is considered not eligible for chalitzah since it is against the kavod hamelech for her to spit in front of him, and she is therefore exempt even from yibum. Why it this so, it should be similar to a deaf/mute who is eligible just unable to perform? R' Elchonon (5:5) suggest that we only consider the situation eligible but impossible - 'pumei ka'iv lei" when it could technically change, but an issur to spit in front of a king will always be there and is considered not eligible. This answer is difficult bec. the point is that the inability to perform chalitzah is an external factor both by the deaf/mute and by the king.

R' Moshe (Igros E.H. 1:158) gives a very clear answer, he assumes that we look at it from the perspective of the mitzvah. So, a deaf/mute has a mitzvah of chalitzah just that he is unable to perform it, so he is still obligated in the mitzvah of yibum. But a king has not mitzvah of chalitzah since it is assur to perform it, therefore he is not eligible for yibum and since there is no mitzvah of yibum or chalitzah, there is no zika.

Yevamos 43b - Aveilus Chadasha and Yeshana

The gemara concludes that a Nesuah cannot even do Eirusin during aveilus chadasha, but during aveilus yeshana it is permitted. But masah u'matan and laundering are the opposite, they are permitted during aveilus chadasha (during shloshim), but assur by yeshana (as a side point: the gemara seems to understand that shloshim of aveilus chadasha is equal to shavua shechal bo of yeshana).

2 separate points:

1. Tosafos is bothered about this distinction. Tosafos seems to explain that the 2 contrasts of the gemara of 1. yeshana vs. chadasha, 2. rabim vs. yachid, are coming to explain these distinctions. Regarding eirusin, we are more machmir by an aveilus chadasha since it is more chamur, rather than an old aveilus which we don't have to be so strict about. However, regarding masah u'matan and laundering, we are machmir by a public aveilus from doing public activities bec. it looks as if you are not concerned about the aveilus, but by a private aveilus where it is not obvious to others that you are in a state of aveilus we are not machmir about public activities since people don't realize that you are an avel. Therefore, the distinction between chadasha and yeshana explains eirusin, and the distinction between rabim and yachid explains masah u'matan and laundering.

2. Tosafos has an approach that the mitzvah of pru u'rvu would override 12 months for a father and mother but not shloshim (Rabbeinu Tam then goes further to suggest that it can even override shloshim). Similarly at the end of Tosafos there is a tzad that seudas mitzvah will override 12 months of a father and mother but not shloshim. If we assume that 12 months is a chiyuv of aveilus for a father and mother similar to sheloshim of other relatives, it is not clear why we should make a distinction. This distinction seens to be a support for R' Moshe that the aveilus of 12 months is not a din in aveilus (see also chochmas adam 166:2), rather a mitzvah of kibud av, therefore, a mitzvah cannot push off aveilus, but it can override the mitzvah of kibud av.

Yevamos 42a - Waiting 3 Months after Conversion

A Jewish man lived with a non-jewish woman for years, she then converted and he did teshuvah, do they have to wait 3 months before getting married?

First, the mishnah 24b says that a non-jewish women who is suspected of having relations with a jewish man cannot marry her after she converts. The reason given in the gemara (explained by rashi) is that getting married strengthens the suspicion that they did in fact have relations. However, R' Shlomo Kluger in Shulchan Aruch (E.H. 11:5) points out that if they definitely had relations (not just suspect), then it should be permitted since in that case the marriage is not strengthening the "rumors", since we know for sure that they were mezaneh. However, the Nimukei Yosef (brought in Beis Shmuel) says that even if they definitely had relations, they cannot get married. R' Moshe (Igros E.H. 1:27) is mechadesh that the Nimukei Yosef is concerned that by getting married they would be publicizing the sin that they commited by having relations. This only applies to a situation where we know for sure they had relations but it was not public knowledge, however when they actually lived together, so it is public knowledge, one is supposed to publicize the aviera when they do teshuva.

Regarding waiting 3 months, R' Moshe writes matter of factly that she must wait. I don't understand why she needs to wait. We require havchana whenever we don't know who the father is, or don't know if conception occurred before or after his conversion (either for the purpose of shechina resting, or for the purpose of not leading to ervah). But, here everything is very clear, the child is Jewish since she converted while pregnant (or before she became pregnant). The father was jewish the whole time so that any son born later will be a brother both from the father and from the mother, so there won't be any concern even if yibum is done. Why would there be a need for havchana?

Perhaps the need for havchana is bec. we are concerned that before she converted she had z'nus with someone else. This is really a machlokes on 35a whether a convert has to wait 3 months or do we assume that she avoided becoming pregnant since she had in mind to convert. Although the Beis Yosef (13:5) argues on the magid mishna and says that we are concerned that she was mezaneh and became pregnant, in Shulchan Aruch he seemed to come out that she does not have to wait (Beis Shmuel 13:7). Why then is R' Moshe machmir for havchana? Is there any point in havchana to determine whether conception occurred before or after she converted (it shouldn't make a difference for anything)?

Yevamos 41b - Chalitzah within 3 Months

The gemara says that based on the rule of kol ha'oleh l'yibum..., chaltizah cannot be done so long as there is an issur to do yibum (provided that the issur will go away sometime in the future so the issue is only about delaying the chalitzah - rashi). The rationale seems to be that the chalitzah is considered "weak" whenever yibum isn't possible (that is the implication of rashi that when you can wait, you should wait to have the chalitza done b'heter). The gemara asks that we find that chalitzah can be done to a women who is a safek and may be the sister of his zekukah, even though it would be assur to do yibum to her until the safek is clarified. The gemara answers that when the issur of yibum is bec. of a safek, if Eliyahu Hanavi would clarify the safek then yibum can be done, therefore we consider her eligible for chaltiza. But within the first 3 months even if Eliyahu Hanavi would determine that she is not pregnant we would still not allow yibum since there was a gezeira of havchana, not just a chashash of her being pregnant (as we see that even by a ketana and many other women who cannot possibly be pregnant are included in the gezeira of havchana).

We see that even if practically yibum cannot be done since the safek has not been resolved by eliyahu, we would still allow chalitzah. Why? Shouldn't we say that since practically speaking yibum can't be done, so chalitzah can't be done either? It seems that the reason why chazal instituted an issur of chalitzah when yibum can't be done is not bec. the inability to perform yibum makes the chalitzah weak, but rather bec. people will see that chalitzah was done in such a situation and come to do yibum in the same situation. Therefore, in a case of safek they were not concerned bec. people who see that chalitzah was done will assume that the safek has been resolved and that is why chalitzah was allowed to be done. But in a situation where there is an issur yibum bec. of a gezeira i.e. havchana, if we would allow chaltiza, people will assume that if chalitza is allowed then yibum is also allowed.

Yevamos 40a - Achilah Gassa - Overeating

Tosafos asks that we find in nazir and horyos that achila gassa is not mitzvah min hamuvchar but it is called "achila". Tosafos answers that there are 2 types of achila gassa (see Tosafos Yeshanim - first answer is very unclear ?). In Pesachim 107b Tosafos explains this answer that when a person has no desire to eat more that is achila gassa that is still called achila and therefore they fulfill their mitzvah of eating pesach. But when a person is so full that they are disgusted with eating, that type of achila gassa is not called achila i.e. you are not yotzei on pesach and you are not in violation on yom kippur.

Based on Tosafos, when the gemara is looking for 2 types of achila for abba shaul, we should answer like the gemara does that if he wants he can eat l'teiavon, and if he wants achila gassa. But the type of achila gassa that we would be refering to is the one where you have no desire to eat but are not at the point where you are disgusted with food and that type of achila gassa is called achila. The pasuk would be telling you that you must eat l'teiavon, to the exclusion of even this type of achila gassa. Why does the gemara only entertain the more sever type of achila gassa and not the lesser form of achila gassa?

Yevamos 39b - Abba Shaul: Wrong Intentions Make the Child a Mamzer

Abba Shaul says that one who has improper intentions when performing the mitzvah of yibum (i.e. he is motivated by physical desires rather than the intent of performing the mitzvah) is "as if he had relations with an ervah" and there is a concern of the child being a mamzer. The opinion of Abba Shaul is very difficult:

1. From the phrase it sounds as if he is not convinced that the intentions actually make a difference?

2. R' Elchonon (kovetz hearos 36:1) points out that abba shaul and the rabbanan seem to be arguing about 2 things. First, acc. to rabbonon he can acquire her even if he has the wrong intentions - abba shaul argues and says that he would not be koneh her. Second, the rabbonon would say that even if he is not koneh her, there is also no issur of eishes ach, similar to a miuberes acc. to reish lakish (when she later miscarries), although he did not perform yibum and was not koneh her, there is no issur eishes ach - abba shaul disagrees and says there is an issur eishes ach.

3. The Poras Yosef points out that from the fact that the mishnah in bechoros is based on abba shaul, it implies that even though originally they had pure intent for mitzvah, and later they did not have pure intent for mitzvah but also had intent for beauty, abba shaul's ruling applies that there is a concern of issur eishes ach. This seems to contradict what we normally assume by mitzvos. Even acc. to the opinion that mitzvos require kavana, one can have an ulterior motive as well and that would not detract from the kavana of the mitzvah. Here by Yibum, abba shaul seems to require PURE kavana for mitzvah without any ulterior motive. Clearly, his requirement is not to have kavana for mitzvah, but rather NOT to have ulterior motives.

Yevamos 37b - Who Will Be Mine for a Day?

The Siderei Tahara (Y.D. 192:6) quotes an interesting question from the achronim. Perhaps in the days of Rav and Rav Nachman the chumrah of R' Zeirah to keep 7 clean days for even nidah, was not yet popular. Therefore, when Rav and R' Nachman called "who will be mine for a day", they were looking for women who were on their 7th day of nidah (deoraysa), so that even if they have blood from the chimud, they will still be able to go to the mikvah that night and be tahor (Any women who is not yet on her 7th day would be a problem since if she sees blood she will still need 7 days, but for someone on their 7th day of nidah there should not be a problem). So how can the gemara ask from the statement of Rava that Dam Chimud would require "7 clean days", that is only in the time of Rava which was after R' Zeirah that Chimud would require 7 clean days, but in the days of Rav and R' Nachman it would not require 7 clean days?

Yevamos 36a - 1. Oleh l'yibum o'leh l'chalitza. 2. Chalitzah after Bi'ah to Meuberes

2 points:

1. R' Elchonon (38:3) points out that normally the rule of kol ha'ola l'yibum.... means that if there is zikas yibum then there is chalitza, to the exclusion of a case where there is no zikas yibum. But here, the gemara can't possibly mean that rule, since there is zikas yibum even when she is pregnant (bec. even acc. to reish lakish there is no issur eishes ach to have biah with her when she is pregnant so long as the vlad turn out to be not shel kayama as we said yesterday - the reason why there is no issur eishes ach is bec. there is zikah). Rather, the gemara means that in a situation where yibum cannot be performed now bec. the bi'ah will not be effective to be koneh her and patur the tzarah, the chalitza will also not be effective. This is very meduyak in rashi on the top of the page vs. rashi 44a.

2. Yesterday I pointed out that acc. to reish lakish, rashi explains that the bi'ah while she is pregnant (in a case where she later miscarries), aside from not being an issur eishes ach, makes it impossible to free her with chalitzah. Rashi is medayek this from the mishna and gemara which says that the only solution is to do yibum after she miscarries, which implies that there is no other solution. However, the maharsha 36b explains that rashi 36b when he says that she needs a get but does not need chalitzah is going acc. to r' yochanan, but acc. to reish lakish he would need a get and chalitzah (see also tosfos yeshanim). From the maharsha we see that even after he had bi'ah there is a solution to free her by a get and chaltizah, the chalitzah would be deoraysa and the get would be derabonon as a penalty for entering a safek. This seems to contradict rashi 35b who understands that once bi'ah was done, chalitzah no longer works mideoraysa?

Yevamos 35b - Hagdara of Bi'as Miuberes Acc. To Reish Lakish

Acc. to Reish Lakish it is not clear what the hagdara of the bi'ah would be to a miuberes when the vlad is found to be not bar kayama (it is also not so clear whether there is a nafka minah between the version that learns if from sevara and the version that learns if from a pasuk). The gemara is clear that it would not work to acquire her like normal yibum, but it is not clear if there would be an issur of eishes ach. Tosafos points out from the fact that you are not chayev a korban that there would not be an issur of eishes ach. It seems that since it is a situation of Yibum there is no issur of eishes ach, but since at the moment the child could turn out to be bar kayama, the yibum does not take effect.

Rashi (d.h. d'lo sagi) understands from the gemara that if he would have bi'ah with her, and the child is found to be not bar kayama, he can no longer do chalitzah "since he did have bi'ah with her". It could be that rashi means to say that there would be an issur to do chalitzah since that would retroactively render the bi'ah to be an issur of eishes ach (but if he did chalitzah it would be effective). It seems more meduyak in rashi that the biah is considered to be the start of the mitzvah, just that it does not complete the mitzvah. Since the bi'ah starts the mitzvah, it strengthens her zikah to him so that chalitzah is no longer effective.

Yevamos 34b - Yibum before and after Matan Torah

There is a lot to speak about (Yossi - this is more your type of thing, not mine). I just want to make 1 point.

The gemara says that Onen did not have regular biah bec. he wanted to avoid having a child since "lo lo yihyeh hazerah" - meaning the child would not be his. What kind of rationale is this? From all perspectives of the halacha we consider the child to be his, so what was his concern? Rashi writes in chumash that Yehuda told Onen to do Yibum and call the child after Er. Ramban asks that the gemara already says that there is no requirement to call the child "al shem achiv hameis". The Re'eim answers that we are motzi the pasuk from peshuto based on a gezeira shava to nachala (yevamos 24a) which is only after matan torah, but before matan torah it was k'pshuto that the child was called after the dead brother. Based on this it seems that although after matan torah we understand the pasuk to be limited to inheritance (and actually refers to the yaveim not the child) and we don't consider the child to be that of the dead brother. Prior to matan torah we consider the child for all purposes to be the child of the dead brother - the father doesn't even have the right to name the child. Therefore, Onen did not want to have a child since the child would not carry his name at all.

Yevamos 34a - Issur Achilah and Issur Hana'ah

We find in rashi 3 different methods of creating an issur mosif. 1. the cheftzah shel issur becomes assur to more people. 2. the cheftza shel issur becomes more assur i.e. was assur to eat and now becomes assur b'hana'ah. 3. the cheftza shel issur becomes more limited in what you can do with it i.e. assur l'mizbeiach (rashi here considers this mosif, but in shavuos 24b considers this kollel). The commonality of them all is that the cheftzah shel issur becomes more severe in its issur.

2 points:

1. It seems that it is only considered issur mosif if on a practical level the 2nd issur increases severity such as when aishes ach is chal on top of achos isha, the women who is the cheftza of issur becomes assur to more people (all the husbands brothers). This would only apply if he actually has other brothers aside from the one who is married to his wife's sister. Based on this, when we say that nosar is an issur mosif bec. it becomes assur l'mizbeiach, is that only when there is a mizbeiach, but if the mikdash would be destroyed before it becomes nosar, it would not be an issur mosif?

2. Rashi explains that when the issur of hekdesh is chal on the issur of cheilev, it is an issur mosif since the piece of issur now becomes assur b'hana'ah. Why is this called an issur mosif, it is an entirely different type of issur - even if an issur achilas kodshim can't be chal on top of an issur to eat cheilev, if one would eat it he would be in violation of eating cheilev and also benefiting from kodshim (since eating is also a benefit). I found that R' Elchonon (33:7) asks a similar question, but not exactly on this Rashi. R' Elchonon suggests that every issur achila is really a limited issur hana'ah. Therefore, the original issur of cheilev is a limited form of issur hana'ah so that the issur hana'ah of kodshim can't be chal on it (if not for the fact that it is an issur mosif). However, R' Elchonon points out that based on this one can only be chayev for eating when there is a benefit, but if there is no han'ah in the eating he should not be chayev for achila.

נכסי דבר שטיא וגדר חזקת מרא קמא

reb avi allow me to go back for a momet, the blog was quiet so i figured why not, i didn't get a chance to look into your posts yet...
נשאלתי: בגמא לעיל הביאה ראיה שבספק גירושין שע"י תרי אומרים קרוב לו ותרי אומרים קרוב לה א"א לונר שהוי ספק דאורייתא וליכא למיסמך אחזקה דמותרת לשוק דהוי דומיא דנכסי דבר שטיא דהוי תרי אומרים שהיה שוטה ותרי אומרים דהיה חלים ואוקמי אראע בחזקת בר שטיא וא"כ מוכח דף בכי האי גוונא אזלינן בתר חזקה,
ובפשטות תמוה דמה ענין חזקת ממון דמרא קמא לחזקת איסור והיתר, דחזקת ממון הוי דין שאע"פ שאין בירור אוקמי ממונא בחזקת מרא קמא כעין שאמרינן המע"ה
ומצאתי דהבאר יצחק לר"א ספקטור יו"ד י"ח הביא ראיה מגמרא זו שחזקת מרא קמא הוי ממש כעין חזקה דמעיקרא כעין איסור והיתר ולא הוי דומה להמוציא מחבירו עליו הראיה, ובאינצקךופדי תלמודית ערך חזקת מרא קמא מביא מ"ח אחרונים בגדרה של חזקת מרא קמא עכ"פ מגמרא זו לכאורה ראיה חזקה לרי"א ספקטור וסיעתו

Yevamos 33a - Is R' Chiya a Liar?

The gemara uses a very strange phrase. It seems that the assumption of the gemara is that when there is a machlokes that stems from a mesorah i.e. whether Rebbi said you are chayev 1 or 2, the rule is that both positions have to be justified. Meaning each opinion has to explain not only why he is correct but also pinpoint the mistake of his colleague bec. otherwise he would be claiming that his colleague is a liar by saying over a wrong mesorah (to the exclusion of an argument in sevara where each side presents its logic). Someone in my shiur asked if this is a standard rule that anytime 2 opinions argue about what they heard from their rebbi, does each one have to justify how his colleague could have made a mistake? We find many places where there is a machlokes about what someone said (like between r' avin and r' dimi) and the gemara never makes a big deal of how each one can claim the other is a liar?

Someone else suggested that it could be that only here where they supported their mesorah by taking an oath, does each have to justify the opinion of his friend.

Yevamos 33a - Issur Chal Al Issur

I was in Eretz Yisroel for 2 weeks for a wedding. I apologize and I hope to get back to the regular posting.

R' Elchonon (kovetz hearos 30:7) raises the question whether the concept of ein issur chal al issur, prevents the second issur from being chal at all so that there is no prohibition regarding the second issur, or is it just a din in punishment that one cannot be punished for the second issur.

He proves from Tosafos who explains that the issur zarus is chal simultaneously with the issur neveila (by a bird that melikah was done to), since the issur neveila cannot be chal on top of the issur meilah, and the issur meila is only removed with the sprinkling of the blood, so both the issur zarus and the issur neveila are chal together at the time of sprinkling the blood. R' Elchonon points out, if the issur of neveila is actually chal at the time of melika but only in respect to punishment do we say that you can't be chayev for neveila until after zerika (so in respect to punishment alone neveila is chal at zerika), how can the issur zarus which only begins at zerika be chal on top of the issur neveila which is chal at the time of melika. From the fact that tosafos assumes that both zarus and neveila occur simultaneously at the time of zerika, it is clear that 'ein issur chal al issur' prevents even the issur neveila from being chal on top of the issur meilah.

R' Elchonon proves the same point from the Nekudah Nifla'ah of the Rambam in Krisus.