In Yevamos 11, the gemara says that a sotah vadai (witnesses confirming she committed adultery) would not fall to yibum and even exempt her tzarah from both yibum and chalitzah. This is derived from the fact that the Torah calls it "tum'ah" like arayos. Tosafos (Yevamos) asks, how then does our gemara ask that by a safeik sotah (a woman who received kinuy and stirah and her husband dies before she drinks) that she should be able to do yibum with the husbands brother - since she is a safeik sotah, there is a chance that she committed adultery and does not fall b'yibum, so misafeik we should not be matir her to do yibum?
R' Chaim (Chidushei HaGrach 6:19) explains that the gemara who considers a safeik sotah who had kinuy and stira to be assur m'safeik and even goes so far to say that we treat the safeik like a vadai (28a) is only a gezeiras hakasuv regarding the kinuy that it is strong enough to make the stirah that follows create an issur and even treat the safeik like a vadai. But in actuality she still has a chezkas heter and her status of safeik is not a real safeik hashakul, rather we assume she is innocent. Therefore, only regarding the effect of the kinuy and stirah that they create an issur, do we treat her as a true safeik and even like a vadai, but we don't truly suspect her of committing adultery and even as a safeik are not concerned that the label "tum'ah" applies to her, so without the limudim found in our gemara we would even permit yibum. With this R' Chaim explains the Rambam who paskens that the tzarah of a safeik sotah is allowed to even do yibum, because the special exemptions that we have in our gemara only apply to her, but regarding the tzarah we consider the safeik sotah innocent based on her chazaka, and even allow her tzarah to do yibum.
The Netziv (Meromei Sadeh) deals with this like a real safeik. His approach is that if we hold safeik d'oraysa l'chumra, we would not need a pasuk to assur a safeik sotah (because she is a safeik d'oraysa of being a vadai sotah). From the fact that we need a source to assur a safeik sotah from doing yibum, it is in effect a gezeiras hakasuv saying that she needs chalitzah b'toras vadai because we regard her as being zakuk to yibum, and therefore her tzara is also zekukah to yibum.
2 comments:
Would the Netziv work according to Rava that the Ptur of Yibbum is learnt from a Kal Vachomer, rather than a Pasuk? Would you say Dayo on the Kal Vachomer and say she has a regular Zikka for Chalitza?
Very good point!
i think that according to rava, the whole mehalech won't work. If we truly assume that we have to reconcile the safeik by doing chalitzah and not yibum, rava should not even need a kal v'chomer to prevent the yibum.
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