Friday, June 29, 2007

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?

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