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Week 55 - Shabbat - 16 December 2000

YEVAMOT: CHAPTER 10: MISHNAH 8

If a boy nine years and one day old had intercourse with his yevamah, and afterwards he had intercourse with her rival -- he renders ineligible for himself. Rabbi Shimon says, He does not render her ineligible. If a boy nine years and one day old had intercourse with his yevamah, and died, she performs halitzah and may not marry by yibum. If he wed a woman, and he died -- she is exempt.

Kehati

If a boy nine years and one day old had intercourse with his yevamah, and afterwards he had intercourse with her rival -- his dead brother left two wives, and he had intercourse with one of them, and afterwards with the other, he renders both ineligible for himself -- for intercourse by a nine-year-old does not effect total acquisition, rather it has only the legal status of ma'amar by an adult, and it was taught, "If he married by ma'amar this one and by ma'amar that one, they require two bills of divorce and halitzah" (5:4, above), i.e., ma'amar after ma'amar is valid; and he may not keep either, as it is written, "who does not build up his brother's house" (Deut. 25:9) -- he builds up one house, and he does not build up two houses (4:11, above).

Rabbi Shimon says: He does not render her ineligible -- he does not render prohibited to himself the yevamah whom he had married by yibum first, for the same reason explained in the previous mishnah, i.e., according to Rabbi Shimon it is doubtful whether intercourse by a nine-year-old effects a contract of marriage. If it does, then he already married the first one by his intercourse, and his intercourse with the second one has no legal effect, for an act of intercourse after another such act has no legal effect; if, on the other hand, it does not effect a contract of marriage, then it is accounted as not having had intercourse with either and he may therefore keep the first, but not the second one, since he may have acquired the first one. The halakhah does not follow Rabbi Shimon.

If a boy nine years and one day old had intercourse with his yevamah, and died -- and there is a third brother, she performs halitzah and may not marry by yibum -- since intercourse by a nine-year-old has the same legal status as an adult's marriage by ma'amar, it follows that she has not yet cut the yibum tie caused by her husband's death. The intercourse by the nine-year-old brother imposes on her a new tie, and she now has two yibum ties, and it is written, "and one of them dies ... her husband's brother shall go in to her" (Deut. 25:5) -- a woman who has one yibum tie, and not who has two yibum ties (as explained in 3:9 above); therefore she performs halitzah and she is not married by yibum.

If he -- a person nine years and one day old,

Wed a woman, and died -- childless, she then is exempt -- from halitzah and from yibum, for a minor's marriage is not valid. Regarding the yevamah, however, the Sages enacted that intercourse acquires to the same extent as ma'amar, since she is tied to him as a result of his dead brother's marriage.

YEVAMOT: CHAPTER 10: MISHNAH 9

If a boy nine years and one day old had intercourse with his yevamah, and after he came of age he married another woman, and died; if he did not know the first one after he came of age -- the first one performs halitzah and may not marry by yibum, and the second one either performs halitzah or is married by yibum. Rabbi Shimon says, He marries by yibum whichever he wishes, and submits to halitzah from the other. It is all one whether he is nine years and one day old, or he is a twenty-year old who has not produced two hairs.

Kehati

If a boy nine years and one day old had intercourse with his yevamah, and after he came of age he married another woman, and died -- childless; if he did not know the first one -- he did not have intercourse with his yevamah, after he came of age -- the first one -- the yevamah, performs halitzah and is not married by yibum -- since she has two yibum ties, since intercourse by a nine-year-old has the same legal status as marriage by ma'amar, and therefore she has not yet cut her first yibum tie, as was explained in the preceding mishnah,

And the second one either performs halitzah or is married by yibum -- even though it was taught, in the case of an adult who married by ma'amar and died (3:9, above), that even his fully legally married wife performs halitzah and is not married by yibum, owing to the enactment concerning a woman married by ma'amar, nonetheless, the Sages did not so enact in the case of intercourse by a minor, because the Sages did not equate the act of intercourse by a nine-year-old with marriage by ma'amar in order to obviate the rival's necessity for yibum (Hameiri, following one opinion in the Gemara). According to another interpretation (following another opinion in the Gemara), this mishnah differs from the other mishnah (3:9) whose Tanna holds that the law was enacted by the Sages lest it be said that two yevamot who come from one house are married by yibum, and therefore her rival also does not undergo yibum; and since the Tanna in 3:9 deals with the case of adults, the law was taught referring to an adult, but the same applies to a minor. The Tanna of the present mishnah, on the other hand, does not fear that it will be said that two yevamot who come from one house marry by yibum, and the Tanna refers to a minor, since he is dealing with the case of a minor, but the same applies to an adult (Tosefot Yom Tov; see also Tosefot Rabbi Akiva Eiger).

Rabbi Shimon says, He marries by yibum whichever he wishes -- for according to the opinion of Rabbi Shimon it is doubtful whether the act of intercourse by a nine-year-old constitutes an unqualified acquisition or none at all. If the former is the case, then the first one is his wife and she may marry by yibum, and if the latter is the case then she never was the wife of the minor, and she is only bound by the yibum tie caused by the death of her first husband, and submits to halitzah from the second one -- in case the act of intercourse by a nine-year-old does not effect acquisition, and consequently he did not marry the first one, and they are not rivals, but each has a yibum tie caused by the death of another brother; but she is not married by yibum, in case acquisition was effected, and it is forbidden to perform yibum on two yevamot who come from one house.

It is all one whether he is nine years and one day old, or he is a twenty-year-old who has not produced two hairs -- the same applies to them regarding all the laws taught above, until he is thirty five years and one day old, and so long as he does not produce two hairs, his legal status is that of a minor. However, once he reaches the age of thirty five years and one day, he is an adult in all respects, though he has not produced two hairs, but he has the legal status of a sun-eunuch (see 8:4, above).

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