Kiddushin, Daf Nun Aleph, Part 5

 

Introduction

The Talmud continues to raise difficulties against Rava who said that kiddushin that cannot be followed by intercourse are not kiddushin.

 

ת"ש מי שיש לו שתי כתי בנות משתי נשים ואמר קידשתי את בתי הגדולה ואיני יודע אם גדולה שבגדולות ואם גדולה שבקטנות אם קטנה שבגדולות שהיא גדולה מן הגדולה שבקטנות כולן אסורות חוץ מקטנה שבקטנות דברי ר"מ

 

Come and hear: If one has two sets of daughters by two wives, and he says, I have betrothed my senior daughter, but do not know whether the senior of the seniors or the senior of the juniors, or the junior of the seniors who is senior to the senior of the juniors, all are forbidden, excepting the junior of the juniors: the words of R. Meir!

 

Again, we encounter a case where a man does not remember which of his daughters he betrothed. R. Meir says we must consider three of the four girls doubtfully betrothed. Only the youngest girl of the younger set is not betrothed. But the husband cannot have intercourse with any of the doubtfully betrothed girls since any one of them may be the sister of his betrothed wife. This seems again to indicate that kiddushin that cannot be followed by intercourse are kiddushin.

 

הכא במאי עסקינן כשהוכרו ולבסוף נתערבו

דיקא נמי דקתני איני יודע ולא קתני אין ידוע ש"מ

 

Here we are dealing with a case where they were [originally] known, and [only] subsequently mixed up.

This is also indicated by a precise reading of the mishnah, for it taught: I do not know, not, it was not known. This proves it.

 

In the mishnah, the father at one point knew which daughter he was betrothing. At the point of betrothal, the kiddushin could have been followed by intercourse. Later, he and the husband became mixed up, and this is why three of the girls are prohibited. In other words, the kiddushin were done properly, but the identity of the betrothed girl was subsequently lost.

 

אי הכי מאי למימרא לאפוקי מדר’ יוסי דאמר לא מחית איניש נפשיה לספיקא קמ"ל דמחית איניש נפשיה לספיקא

 

If so, why state it? To counter R. Yosi, who said: A person does not permit himself to be brought into doubt; hence we are informed that one does bring himself into doubt.

 

R. Meir s opinion counters the opinion of R. Yosi who says that when the father makes this statement, he is referring only to his oldest daughter, and thus she is the only one betrothed. R. Meir teaches us that if the father and husband cannot remember which girl was betrothed, three of them, anyone who could be called older must be considered doubtfully betrothed.

 

ת"ש מי שקידש אחת משתי אחיות ואינו יודע איזו קידש נותן גט לזו וגט לזו

הכא במאי עסקינן כשהוכרו ולבסוף נתערבו

דיקא נמי דקתני אינו יודע ולא קתני אינו ידוע

 

Come and hear: If a man betrothed one of two sisters and does not know which, he must give a divorce to both!

Here we are dealing with a case where they were [originally] known, and [only] subsequently mixed up.

This is also indicated by a precise reading of the mishnah, for it taught: I do not know, not, it was not known. This proves it.

 

This is essentially the same difficulty and resolution raised above. The mishnah quoted here is Yevamot 2:6.

 

אי הכי מאי למימרא סיפא איצטריכא ליה מת ולו אח אחד חולץ לשתיהן היו לו שנים אחד חולץ ואחד מייבם אם קדמו וכנסו אין מוציאין אותם מידם דוקא מיחליץ והדר יבומי אבל יבומי והדר מיחליץ לא דקא פגע באחות זקוקתו

If so, what is this saying?

The second clause is necessary: If he dies, and has one brother, he must perform halizah with both; if he has two [brothers], one performs halizah and the other yibum; yet if they jump the gun and marry them, they are not compelled to divorce them.

Specifically he must perform halizah and then yibbum, but not yibum and then halizah, because he may encounter the sister of one bound to him by the Levirate tie (zekukah).

 

The reason this mishnah is taught is for the last clause. Since this is a bit complicated, I am quoting my full commentary from Mishnah Yomit:

If he dies, both sisters become liable for yibbum or halitzah to his brothers. If he has one brother, that brother cannot have yibbum with either because it is forbidden to have relations with the sister of a woman with whom you are liable to have yibbum (z kukah). In other words, if he were to have yibbum with one of them, it could be that the other was the one who was really betrothed. Therefore, he must perform halitzah for both.

If there are two brothers, the first brother performs halitzah for one of the women and then the second brother can have yibbum with the other sister. The first brother should do halitzah because if he were to have yibbum he might be having relations with the sister who was not betrothed, and therefore he is having relations with the sister of his z kukah (as in the above situation). However, after the first brother has halitzah with one of the sisters, there can be no problem for the second brother to have yibbum with the second sister. If she is the one who was betrothed to the dead brother, then he has yibbum with her, which is perfectly okay. If the other woman was the one betrothed, she has already had halitzah, and her ties to the brother are severed. Therefore, this woman is not the sister of his z kukah.

If both brothers have yibbum with the two sisters, the court does not force them to separate, even though the first brother should have performed halitzah. Although the brother who first performed yibbum may have originally had yibbum with the sister of his z kukah, since her sister has now had yibbum, her ties to the other brother have been severed and neither brother is currently married to the sister of his z kukah.