- The difference between the case of a safek get and a safek arising from a collapsed house
On Daf 30b Rabbah said that we do not prohibit a woman who has a chazakah to marry anyone, on the basis of a safek. Abaye continues to challenge Rabbah here, with a Mishnah that teaches that if a house collapsed on a man and his niece whom he was married to, and it is not known which of them died first, her tzarah does chalitzah but may not be taken in yibum. She cannot do yibum because if the husband died first, she is a tzarah of an ervah. She has to do chalitzah, for perhaps the niece died before her husband, in which case she would be muttar to the yavam. We see from this Mishnah that even though the tzarah has a chazakah to marry anyone, she is prohibited to do so without chalitzah due to a safek. And if you will say that the requirement for chalitzah is a chumrah, it cannot be, since חומרא דאתי לידי קולא הוא – it is a chumrah that will lead to a leniency, for if you say she requires chalitzah, she may come to be taken in yibum. The Gemara gives two answers, the first one being that in the case of divorce, which is a common occurrence, the Rabbis decreed that she does not do chalitzah since it might lead to yibum. In the case of the מפולת – the collapsed house, which is not a common occurrence, the Rabbis did not decree to not do chalitzah out of concern it will lead to yibum.
- Two sets of witnesses vs. one set of witnesses in the safek case of a thrown get
The Gemara challenges the notion that the reason the Mishnah did not include a safek case of a thrown get was because in that case the chalitzah would not be done since it might lead to yibum. It was taught in a Mishnah in Gittin: If a get was thrown in reshus harabim and it landed between the man and the woman, leading to a safek, מגורשת ואינה מגורשת – she is divorced and is not divorced. And it was taught that one of implications of not being divorced is that if she was an ervah to her husband’s brother, her tzarah requires chalitzah, and we do not say that we do not require her to do chalitzah for if we do, it might lead to her being taken in yibum!? The Gemara answers that it was stated regarding this Mishnah, that Rabbah and Rav Yosef say: הכא בשתי כיתי עדים עסקינן – We are dealing with two sets of witnesses, where one set says it was closer to her and the other says it was closer to him. In such a case, it is a safek d’Oraysa. Rashi explains that since there are two witnesses who say it was closer to her, we cannot use the principle of chazakah to resolve the safek for her tzarah and release her from chalitzah. Our Mishnah is dealing with one set of witnesses, where one says it fell closer to her and the other said it fell closer to him, and therefore, it is a safek d’Rabbanon. The Gemara will successfully refute this answer.
- A woman with two zikahs
The next Mishnah states: שלשה אחין נשואין שלש נכריות – Three brothers were married to three unrelated women, and one of the brothers dies childless, and the second one does maamar and then dies, both of these widows must do chalitzah but they may not be taken in yibum, for the passuk states: "ומת אחד מהם...יבמה יבא עליה" – and one of them dies…her yavam shall have relations with her. This teaches that yibum applies to a woman שעליה זיקת יבם אחד – who has on her a zikah of one deceased brother, ולא עליה זיקת שני יבמין – but does not have on her the zikah from two deceased brothers. Rebbe Shimon says: מייבם לאיזו שירצה וחולץ לשניה – The third brother can do yibum to whichever one he wants but must do chalitzah to the other. Rashi explains that it was already taught in the second perek that Rebbe Shimon does not hold that zikah effects a partial acquisition, resulting in this case of a double zikah. Rather he is in doubt whether maamar works completely to make the first widow the first yavam’s full wife, or if it does not work at all, in which case, the yevamah fell to the yavam from her first husband.
