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?
2 comments:
There is a similar concept by a koton with daas he can be koneh which is why we cant give him mattnah al minas lihaczer the esrog on the first day of succkos because with the daas of his father to give it to him he is koneh it but he can not be makneh it back to his father.I think its the rambam discuses that there are levels of daas by a kotton if you give him a rock he throws it away if you give him a nut he keeps it that is enough daas to effect the aforementioned kinyan which seems to be Dependant on the "the amount of da'as the Torah requires depends on how much da'as you have"
Dosent rashi say something about ha'arah needing daas apparently ih he consummated the marriage there is some daas even though i think there are cholkim on rashi.
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