Tzarat Tzaratah

Yevamot (1:1) | Yisrael Bankier | 7 years ago

If a married man passes away without having any children, one of the surviving brothers (from a common father) is required to either perform yibum, effectively marrying the widow, or chalitzah, the process through which she is then free to marry anyone else. If the widow is related to the brother in a way that yibum would constitute an issur ervah (biblically forbidden relationship) then he is not required to perform the mitzvah of yibum. If there are no other brothers, then she is free to marry another, even without chalitzah. The Mishnah (1:1) teaches that if the late brother left two widows, then the second wife, the tzarah, is exempt from yibum and chalitzah as well, even though she is not related to the surviving brother. Last cycle (Vol 9, Iss1) we focused on the nature of this exemption.

The Mishnah explains that if there was another brother that was able to perform yibum and he did so to the tzarah, and then that brother also passed away, not only is the original tzarah still exempt, but also additional wives of the second deceased brother – tzarat tzaratah.

The Bartenura (citing the Gemara) explains that the exemption of the tzarah (from the first marriage) is learnt from the pasuk that prohibits one from marrying his wife's sister: "You shall not take a woman in addition to her sister, to make them rivals (litzror), to uncover the nakedness of one upon the other (alieha) in her lifetime." The Gemara understands that the apparently superfluous word alieha teaches that the prohibition applies even in the context of yibum. In other words, one is not allowed to perform yibum to an issur ervah¹. Similarly, they learn from litzror, that the exemption applies to the tzara as well. Since it would have been sufficient to write latzor, the use of liztror exempts the case of tzarat tzaratah as well.

Tosfot R' Akiva Eiger (s.v. ve'eshet achiv me'imo) questions the necessity for a pasuk to teach the exemption of tzarat tzaratah. The Mishnah (3:9) explains that if two brothers married two sisters, and then one brother passed away followed by the wife of the surviving brother, he is not allowed to perform yibum. This is because at the time when the brother passed away, the yavama was forbidden to him. The Tosfot explain that the even though after his wife dies, the sister is no longer forbidden, since she was previously forbidden, she is now forbidden as his brother's wife (another forbidden relationship). They add that the tzarah would also be exempt. Returning to our cases, the same logic should apply. Once we have learnt that yibum does not apply to the tzarah, she is defined as an issur ervah. This is because she is an eshet ach she'lo be'makom mitzvah – his brother's wife not in the context of yibum. That being the case, the exemption of tzarat tzaratah appears unnecessary, since she in any case is a tzarat ervah.²

The Chazon Ish answers that there is nothing wrong with the tzara herself. It is only since she is a tzara of an issur ervah that she is exempt from yibum and chalitza. Consequently, she does not have the capacity to exempt another tzarah (from the second marriage). He cites the Rashba in support of this logic. The Tosfot ask that an additional case should be listed where a forbidden relationship exempts a tzara. This is where the widow had been in a previous marriage and was divorced on condition she is not allowed to marry the surviving brother. The Rashba answers that only an issur erva has the capacity to exempt a tzara and not one that has an external reason prohibiting her to the yabam.

But what about after the other brother performs yibum and then passes away? Is the tzara not already defined as an erva? She was excluded from the mitzvah of yibum from the first marriage! The Chazon Ish answers that after the second brother performs yibum the first marriage does not end or is it replaced – it is transferred to the second brother. When the second brother then passes away, the original tzara is still defined the eshet ach of the first brother and the issue returns that it is only if it is be'makom mitzvah that yibum can be performed. Consequently, our tzara is not defined as an issur ervah. Since it was the original erva – an external reason – that exempts her even now for the mitzvah of yibum, that alone cannot exempt tzarat tzarah from the second brother. This then explains why we need a pasuk to teach that even tzarat tzaratah is exempt from yibum or chalitzah.

¹ The pasuk is necessary since the one's brother's wife is normally also considered an issur ervah, yet it is permitted in the context of yibum.

² The Tosfot R' Akiva Eiger cites Rashi (8b, s.v im ken) who applies the same logic when explaining how R' Shimon, who derives the exemption of a tzarah from a different pasuk would also learn the exemption of tzarat tzaratah.

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