Nothing after Chalitza or Yibum

Yevamot (5:3) | Yisrael Bankier | 12 years ago

The fifth perek discusses many cases with one or more yevamim and yevamot involving different combinations and sequences of yibum (or bi’ah), chalitza, get and maamar. When the Mishnah (5:3) discusses a number of combinations that include chalitzah it ends by explaining that “there is nothing after chalitzah.” We shall try to understand this principle.

The Gemara discusses how this principle applies to case where after chalitza was performed, the yabam performed a maamer to the yevama or the tzara.¹ R’ Yehuda explains that the Mishnah must be according to R’ Akiva. After chalitza is performed, there is a negative prohibition of marrying (what was) the yevama.² Since R’ Akiva maintains that kidushin cannot take affect when it would violate a negative prohibition, it explains why a maamar that follows chalitza is ineffective. According to the Chachachim who maintain that kidushin in such a case would be affective, a maamar that followed chalitza would require a get.

The Gemara also cites the opinion of Rebbi who, like the Chachamim, maintains that kiddushin would be affective even if it violated a negative prohibition. Nevertheless Rebbi differentiates between how the maamar was given. If it was for the sake of marriage, then it would be affective. If it was given for the purpose of yibum, under the assumption that there was still a zika and yibum could still be performed, then such a maamar that followed yibum would have no affect. 

The Bartenura adds that if biah was performed first, i.e. a valid yibum, then there is “nothing after biah” (as stated in 5:6). The Tosfot Yom Tov explains that this is also only according to R’ Akiva. The reason is that in a case where there are two yevamot and one or more brothers, after yibum there is a prohibition against marrying the tzarah. He explains that according to the Rosh and the Rif it is a prohibition as implied by the positive commandment (“issur aseh”) to “build his brother’s house” – one house not two. According to the Tosfot there is a negative prohibition. That being the case, only according to the R’ Akiva would a maamar not have an affect on the tzarah after yibum, where as according to the Chachamim a get would be required. 

R’ Akiva Eiger notes that according to the Rosh’s understanding that it is an issur aseh, the later Mishnah (5:6) implies that kiddushin does not take hold even in the face of an issur aseh.³ The Tifferet Yisrael (13 & 29) however appears to understand that when the Mishnah teaches there that “there is nothing after yibum” it is only referring to yavama to which yibum was performed. In other words, there is no longer a zika. With respect to the tzarahowever, there is only an issur aseh and kidushin would be affective. 

¹ The Rambam notes that in a case where there are two yevamot and two brothers and one brother performed a get to one yevama while the other brother followed with chalitza to the other, the story is not over. Thetzara is free to go even though the chalitza is defined as pesula (since yibum was not possible in that situation). The first yevama however would require chalitza from both brothers in order to be free to remarry.

²While there is a negative prohibition after chalitza between the choletz and the chalutza, there is a debate in the Gemara (10b) regarding the prohibition between choletz and the tzarah or the other brothers and either of the yevamot. R’ Yochanan maintains the prohibition is still a lav while Reish Lakish maintains that it is an issur karet– the issur erva of marrying one’s brother’s wife.

³R’ Akiva Eiger uses this understanding to raise a difficult on a Tosfot. See inside for details.

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