Wednesday, June 06, 2007

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.

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