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Yevamos 003: Minyana Lime'utei Mai
Meir Eliezer Bergman asked:
The Gemoro says that the Mishna mentions the number of cases (15) to exclude
two other possible cases (that might have been included if we held of them).
The Gemoro says that even the Amoraim who do hold of those cases agree that
they are not in the Mishna, because they could not be in the Mishna due to
Tzoros Tzoroseihem.
My question is that, if so, how is the number 15 a Mi'ut? (i.e. according to
us, who do not hold of these cases lehalocho). If the cases could not be in the
Mishna anyway, a Mi'ut does not exclude them!
Hope my question is clear
Kol Tuv
Meir Eliezer Bergman
Manchester UK
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The Kollel replies:
(a) Hagaon Rebbi Akiva Eiger asks your question (Gilyon Hashas to Gitin 5a,
Kushyos Atzumos to Yevamos 3b), after citing two places where Tosfos indeed
upholds the principle upon which your question is based (Tosfos Gitin 5a, Nidah
18b): If something doesn't fit into the group that the Mishah is discussing,
the Minyan in the Mishnah cannot be excluding it. He leaves the question
unanswered.
I would suggest the following answer to your question. There are two ways of
grouping cases in a Mishnah. The first is by the *type* of case being
discussed. The second is by the type of Halachos that apply to the case (i.e.
grouping together all those for which certain Halachos apply).
In the first way of grouping, it is obvious that the Minyan cannot exclude
something that does not fit the grouping. (This is the way that Tosfos applies
your principle in Gitin 5a and Nidah 18b.) However, in our Mishnah, the
grouping is done in the second way (the group is "all women who are Patur from
Yibum, they, their Tzaros and their Tzaros Tzaros"). In this case, the Minyan
*can* exclude a case for which some of the Halachos cannot be applied (such as
Tzaras Sotah and Tzaras Aylonis, which cannot have a Tzaras Tzarah). The reason
for this is because the Mishnah could be read as follows: "These are the women
who are Patur from Yibum, both they and *whatever Tzaros or Tzaros Tzaros they
may have*." This would mean that Tzaros Tzaros that any of the women in the
Mishnah *can* have are all exempt from Yibum. If some cannot have Tzaros Tzaros
but can have Tzaros, at least the part of the Mishnah about Tzaros will be
applicable. In short, not being able to have a Tzaras Tzarah doe
s not make it inappropriate to be included in the Mishnah. Therefore, if there
is a Minyan in the Mishnah, it may be excluding such cases from the Halachah
mentioned in the Mishnah (i.e. they are *not* Poter their Tzaros).
(b) To sum this up, there are three categories of "omissions" from a Mishnah or
Beraisa:
(1) A case which the Mishnah seemingly has no reason to omit.
(2) A case for which not all of the Halachos of the Mishnah are *applicable.
(3) A case which does not fit into the theme, or category, of the rest of the
cases in the Mishnah.
In (1), we must assume that this case is excluded from the Halachah of the
Mishnah *even if there is no Minyan in the Mishnah* - unless we can explain
"Mai Shayar d'Hai Shayar."
In (2), if there is no Minyan in the Mishnah we will not assume that this case
is excluded from the Halachah of the Mishnah (even if there is no "Mai Shayar
d'Hai Shayar). But if there *is* a Minyan in the Mishnah, we *will* assume that
this case is excluded by the Minyan from the Halachah of the Mishnah (unless we
can find something else for the Minyan to exclude - as in our Gemara; or unless
we can explain "Mai Shayar d'Hai Shayar - see Tosfos Menachos 18b DH Minayan).
In (3), even if there is a Minyan in the Mishnah, it will not exclude this case
- and it is not even necessary to find something else that the Minyan *is*
excluding (see below).
I believe that the source for Tosfos' (and your) principle can be found in Bava
Kama 5a. We find there that an item that is not part of the category listed in
the Mishnah cannot be excluded by the Minyan in the Mishnah. Moreover, such an
item obviates the necessity to find something that the Minyan *is* excluding.
The Minyan is excluding the other category of items which is not similar to the
one listed - even though the same Halachah *does* apply to the other category
of items (see Rashi and Tosfos there).
(c) Rebbi Akiva Eiger asks a much stronger question on our Gemara in his
Chidushim to Kidushin 3b. How can the Gemara suggest that Rav uses one Minyan
to exclude Rav Asi's Halachah, and the other Minyan to exclude Tzaras Mema'enes
or Tzaras Machzir Gerushaso. If one Minyan excludes Rav Asi's Halachah,
obviously the Minyan *can* exclude something that cannot have a Tzaras Tzarah.
If so, why shouldn't the Minyan exclude Rav's own case as well - since not
having a Tzaras Tzarah is not ample reason for the Mishnah to omit it!
What we have written above answers this question as well. The Minyan excludes a
case for which not all of the Halachos of the Mishnah are applicable - but
*only* if we cannot find something else for the Minyan to exclude. Since Rav
found the other cases to exclude, the Minyan will not exclude his case - which
the Mishnah indeed left out simply because she cannot have a Tzaras Tzarah.
Best wishes,
Mordecai Kornfeld
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