ג׳
א׳הָאוֹמֵר זֶה בְּנִי אוֹ שֶׁאָמַר יֵשׁ לִי בָּנִים הֲרֵי זֶה נֶאֱמָן וּפוֹטֵר אֶת אִשְׁתּוֹ מִן הַחֲלִיצָה וּמִן הַיִּבּוּם:
1When a man says: "This is my son," or "I have sons," his word is accepted,1The rationale for this ruling is the principle of migo. If the husband's statements were untrue, and his intent were merely to free his wife from the obligation of yibbum, he would not have to lie. Instead, he could give her a get (Bava Batra 134b).See also the Shulchan Aruch (Even HaEzer 156:6) and commentaries, which mention other opinions regarding whether this ruling applies when the prevailing presumption is that the man is childless, when the prevailing presumption is that he has brothers, or when witnesses testify that he has brothers. and he frees his wife from [the obligation of] yibbum or chalitzah.
ב׳אָמַר זֶה אָחִי אוֹ שֶׁאָמַר יֵשׁ לִי אַחִין אֵינוֹ נֶאֱמָן לֶאֱסֹר אֶת אִשְׁתּוֹ וּלְהַנִּיחָהּ זְקוּקָה לְיָבָם שֶׁהֲרֵי זֶה מִתְכַּוֵּן לְאָסְרָהּ לְאַחַר מוֹתוֹ:
2When2I.e., when the prevailing presumption is that he does not have a brother, and hence his wife would not be obligated to perform yibbum. a man says: "This is my brother," or "I have brothers," his word is not accepted, and his wife does not become forbidden [to others because] she is required to perform yibbum. [We assume that] his intent was to cause his wife to be forbidden [to other men] after his death.
ג׳הָיָה מֻחְזָק שֶׁיֵּשׁ לוֹ אַחִין וְאָמַר בִּשְׁעַת מִיתָתוֹ אֵין לִי אַחִין אֵינוֹ נֶאֱמָן. וְכֵן אִם אָמַר עַל מִי שֶׁהֻחְזַק אָחִיו אֵין זֶה אָחִי אֵינוֹ נֶאֱמָן. לֹא הָיָה מֻחְזָק בְּאַחִין וְיָצָא קוֹל שֶׁיֵּשׁ [שָׁם] עֵדִים שֶׁיָּעִידוּ שֶׁיֵּשׁ לְבַעְלָהּ אַחִין וְהָעֵדִים בִּמְדִינָה אַחֶרֶת. אֲפִלּוּ אָמַר הוּא בִּשְׁעַת מִיתָתוֹ אֵין לִי אָח הֲרֵי זוֹ חוֹשֶׁשֶׁת וְתַמְתִּין עַד שֶׁיָּבוֹאוּ הָעֵדִים שֶׁאָמְרוּ וְיִשְׁאֲלוּ:
3When the prevailing presumption is that [a man] has brothers and he says at the time of his death,3Even though the statements are being made at the time of the person's death, when it is unlikely that he would lie, we still suspect that he is speaking falsely to spare his wife the difficulty of yibbum or chalitzah. "I do not have brothers," his word is not accepted.4One might assume that, as in Halachah 1, the husband's statements would have been accepted based on the principle of migo. For in this instance as well, the husband could free his wife from yibbum by giving her a get. Nevertheless, our Sages explain that the principle of migo does not have the power to counteract a prevailing presumption.Still, even if the prevailing presumption is that a person has brothers, his word is accepted if he says that he has sons. The rationale is that, in this instance, his statements are not contradicting the prevailing presumption, but rather introducing a new factor (Beit Shmuel 157:9). Similarly, if he says that a person presumed to be his brother is not his brother, his word is not accepted.If there was no prevailing presumption that he has brothers, but a rumor becomes circulated5There is a difference of opinion among the Rabbis whether or not this rumor has to be substantiated in a court. The Maggid Mishneh interprets the Rambam's opinion as being that even a rumor that is not substantiated should be taken into consideration. Needless to say, in the contemporary era, when communications have advanced and travel is easier, this question is far less significant than in previous ages. that there are witnesses who will testify that he has brothers, but these witnesses are overseas, the woman must take this factor into consideration and wait until the witnesses who were mentioned come, and are asked [concerning the matter]. [This ruling applies] even when the husband says, "I do not have a brother" at the time of his death.
ד׳מִי שֶׁזָּנָה עִם אִשָּׁה בֵּין פְּנוּיָה בֵּין אֵשֶׁת אִישׁ וְנִתְעַבְּרָה וְאָמַר זֶה הָעֻבָּר מִמֶּנִּי הוּא וַאֲפִלּוּ הִיא מוֹדָה לוֹ אַף עַל פִּי שֶׁהוּא בְּנוֹ לְעִנְיַן יְרֻשָּׁה הֲרֵי זֶה סָפֵק לְעִנְיַן יִבּוּם. כְּשֵׁם שֶׁזִּנְּתָה עִם זֶה כָּךְ זִנְּתָה עִם אַחֵר. וּמֵאַיִן יִוָּדַע הַדָּבָר שֶׁזֶּה בְּנוֹ וַדַּאי וַהֲרֵי אֵין לוֹ חֲזָקָה. אֶלָּא לְעוֹלָם סָפֵק הוּא וּלְהַחֲמִיר דָּנִין בּוֹ וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת:
4[The following rules apply when] a man engaged in licentious relations with either a single woman or a married woman, she became pregnant, and he claims that he fathered the child. Even if [the mother] acknowledges his statements, and thus the son is considered his with regard to the laws of inheritance,6See Hilchot Nachalot 4:1. the matter is considered to be one of doubt with regard to the laws of yibbum. For just as the woman engaged in relations with him, she could have engaged in relations with another man.7If the woman is married, there is no question regarding the Rambam's ruling, for we presume that by and large, she engaged in relations with her husband. If she is single, the matter is more complex.In this context, the commentaries draw attention to the Rambam's ruling in Hilchot Terumot 8:14, which states that when a priest had relations with a woman and she became pregnant, she is allowed to partake of terumah for the sake of her child. This indicates that we assume that she was impregnated by that priest.As indicated by the Rambam's wording in Hilchot Terumot and in Hilchot Issurei Bi'ah 15:17-18, the matter depends on the woman's reputation. If she is known to be promiscuous, we consider the possibility that she was impregnated by another man. If, however, everyone presumes that she engaged in relations only with this man, he is considered to be the father of the child (Maggid Mishneh).Nevertheless, the Shulchan Aruch (Even HaEzer 156:9) quotes the Rambam's wording without making this distinction. See the Beit Shmuel 156:15. How is it possible to know with certainty that this is his son? There is no prevailing presumption to that effect.The matter thus remains one of doubt, and the more stringent perspective should be taken. Hence, his wife [is obligated to] perform chalitzah,8Lest the child have been fathered by another man, and the deceased in fact be childless. and she [is forbidden] to perform yibbum.9Lest the child have been fathered by the deceased, in which case relations with his brother would be prohibited.
ה׳נֶאֱמָן עֵד אֶחָד לְהָעִיד לִיבָמָה שֶׁמֵּת בַּעְלָהּ וּמִתְיַבֶּמֶת עַל פִּיו. אוֹ שֶׁמֵּת יְבָמָהּ אוֹ שֶׁנִּתַּן לְבַעְלָהּ בֵּן, לְהַתִּירָהּ לְזָר. אֲפִלּוּ עֶבֶד אוֹ אִשָּׁה אוֹ עַכּוּ״ם מֵסִיחַ לְפִי תֻּמּוֹ מֵעִיד בְּמִיתַת הַיָּבָם כְּמוֹ שֶׁמֵּעִיד בְּאֵשֶׁת אִישׁ לְהַתִּירָהּ כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת גֵּרוּשִׁין:
5The testimony of one witness is accepted with regard to the death of a woman's husband, and she may perform yibbum on this basis. [Similarly, such testimony is acceptable if he states that] her yavam died,10Rabbenu Asher differs with the Rambam regarding this matter and maintains that the testimony of one witness is not acceptable with regard to the death of a yavam. Although the Ramah (Even HaEzer 158:3) quotes his opinion, many Ashkenazic authorities recommend leniency. (See Beit Shmuel 158:2.) or that her husband fathered a son,11The Ra'avad and Rabbenu Asher differ with the Rambam with regard to this point, for unlike the death of a person, the birth of a child is not a matter that will surely become undeniable public knowledge. The Shulchan Aruch (Even HaEzer 156:8) quotes the Rambam's opinion, while the Ramah follows the other view. on which basis she would be granted permission to marry another person [without chalitzah].Even the testimony of a servant or a woman, or statements of a gentile made in the midst of conversation are acceptable with regard to the death of a yavam, as they are acceptable with regard to a married woman whose husband has died, to enable her to be permitted to remarry, as mentioned in Hilchot Gerushin.12In Hilchot Gerushin, Chapters 12 and 13, the Rambam explains that the testimony of one witness is accepted in such instances, because:When the matter can be verified definitively without the testimony of a witness, and the witness cannot justify [his statements] if they are not true - e.g., when one testifies that a person died - the Torah did not necessitate [that the requirements of formal testimony be met in these instances]. For it is unlikely that a witness will testify falsely.For this reason, our Sages [extended] the leniency with regard to this matter and accepted the testimony of a single witness that is based on the testimony of a maidservant, [testimony] from a written document, and [testimony] that was not investigated by the ordinary process of interrogation. [These leniencies were accepted] so that the daughters of Israel will not be forced to remain unmarried.
ו׳וְחָמֵשׁ נָשִׁים שֶׁאֵין מְעִידוֹת זוֹ לָזוֹ שֶׁמֵּת בַּעְלָהּ כָּךְ אֵין מְעִידִין לָהּ שֶׁמֵּת יְבָמָהּ. וְדִין עֵדוּת זוֹ כְּדִין אוֹתָהּ עֵדוּת לְעִנְיַן עֵדִים שֶׁמַּכְחִישִׁין זֶה אֶת זֶה בְּמִיתַת הַיָּבָם וּלְכָל דָּבָר:
6Just as the statements of five [specific] women are not accepted with regard to testimony regarding the death of a woman's husband,13See Hilchot Gerushin 12:16, which states that the statements of a woman's mother-in-law, the daughter of her mother-in-law, [her husband's] other wife, her yevamah (i.e., the wife of her husband's brother) and her husband's daughter are not accepted with regard to her husband's death, because the prevailing presumption is that they hate each other. so too, the statements of these five women are not accepted with regard to the death of her yavam.The laws of the testimony governing the death of a yavam are the same as the testimony [governing the death of the woman's husband] with regard to disparities between the statements of the witnesses and all other matters.
ז׳שְׁתֵּי יְבָמוֹת שֶׁבָּאוּ מִמְּדִינַת הַיָּם זוֹ אוֹמֶרֶת מֵת בַּעְלִי וְזוֹ אוֹמֶרֶת מֵת בַּעְלִי. זוֹ אֲסוּרָה מִפְּנֵי בַּעְלָהּ שֶׁל זוֹ וְזוֹ אֲסוּרָה מִפְּנֵי בַּעְלָהּ שֶׁל זוֹ. שֶׁאֵין יְבִמְתָּהּ נֶאֱמֶנֶת לְהָעִיד לָהּ שֶׁמֵּת יְבָמָהּ כְּמוֹ שֶׁבֵּאַרְנוּ:
7[The following rule applies when] two widows, [each one married to one of two brothers,]14I.e., the women are married to two brothers. Thus each one is considered the yevamah of the other. come from an overseas country, this one says: "My husband died," and this one says: "My husband died." Each one is forbidden [to remarry] because of her obligation to the husband of the other one.15I.e., the testimony of each woman is accepted with regard to the death of her own husband. With regard to the death of her yavam, by contrast, the only testimony is that of her yevamah, and that testimony is not accepted. For the testimony of a yevamah is not acceptable with regard to the death of the woman's yavam, as stated [in the previous halachah].
ח׳הָיָה לְאַחַת מֵהֶן עֵד שֶׁמֵּת בַּעְלָהּ. זוֹ שֶׁיֵּשׁ לָהּ הָעֵד עוֹמֶדֶת בְּאִסּוּרָהּ שֶׁאֵינָהּ אֲסוּרָה מִפְּנֵי בַּעְלָהּ אֶלָּא מִפְּנֵי יְבָמָהּ. וְזוֹ שֶׁאֵין לָהּ עֵד מֻתֶּרֶת שֶׁהֲרֵי הֵעִיד הָעֵד שֶׁמֵּת יְבָמָהּ וְהִיא נֶאֱמֶנֶת לוֹמַר שֶׁמֵּת בַּעְלִי:
8If one of these women has a witness who can testify that her husband died, she is still forbidden to remarry - for she is not forbidden to remarry because of [an apprehension that] her own husband [is alive], but rather because of [the apprehension that] her yavam [is alive].16And with regard to the death of her yavam, there is no testimony that is acceptable to the court.Even if the woman actually remarries, at which point it would be likely to assume that her husband is dead, her yevamah is still prohibited. Our Sages feared that a woman would risk ruin in both this world and the next, in order to cause her foe to be forbidden to her husband.The woman who does not have a witness supporting her, by contrast, is permitted [to remarry], for a witness has testified that her yavam died, and her own testimony is accepted with regard to the death of her husband.17See Hilchot Gerushin 12:15.
ט׳הָיָה לָזוֹ בָּנִים וְלָזוֹ אֵין בָּנִים זוֹ שֶׁאֵין לָהּ בָּנִים אֲסוּרָה וְזוֹ שֶׁיֵּשׁ לָהּ בָּנִים מֻתֶּרֶת. הָיָה לָהֶן יָבָם אַחֵר כָּאן הֲרֵי זֶה מְיַבֵּם לִשְׁתֵּיהֶן:
9If one of the above-mentioned women has children, and the other is childless,18And neither has witnesses to support her testimony. the one who is childless is forbidden [to remarry],19For she is dependent on the testimony of her yevamah, as above. and the one who has children is permitted.20For her authorization to remarry does not depend on whether or not her yavam is alive.If there is another living brother to perform yibbum, he should perform yibbum21Or chalitzah. with both of them.
י׳מֵת זֶה הַיָּבָם שֶׁיִּבֵּם אוֹתָן אֲסוּרוֹת לְהִנָּשֵׂא לְזָר כְּשֶׁהָיוּ בַּתְּחִלָּה. נִתְיַבְּמוּ וְנִתְגָּרְשׁוּ הֲרֵי אֵלּוּ מֻתָּרוֹת לְזָר:
10If [in the latter instance], the yavam who married them died, they are forbidden to marry another man as they were originally.22I.e., there were only three brothers. Since the death of the first two brothers was never verified adequately to allow these women to marry freely, the original prohibition applying to them remains in force. If, however, the yavam married them and then divorced them, they are free to marry other men.23For her marriage and divorce releases each of the women from their obligation to their missing yavam.
י״אאַף עַל פִּי שֶׁהָאִשָּׁה נֶאֱמֶנֶת לוֹמַר מֵת בַּעְלִי וְתִנָּשֵׂא אוֹ תִּתְיַבֵּם אֵין הַיְבָמָה נֶאֱמֶנֶת לוֹמַר מֵת יְבָמִי שֶׁתִּנָּשֵׂא לְזָר הוֹאִיל וְהוּא אִסּוּר לָאו שֶׁמָּא יִהְיֶה קַל בְּעֵינֶיהָ. וְכֵן אֵין הַיָּבָם נֶאֱמָן לוֹמַר מֵת אָחִי שֶׁיְּיַבֵּם אֶת אִשְׁתּוֹ שֶׁמָּא עֵינָיו נָתַן בָּהּ. וְאֵין הָאִשָּׁה נֶאֱמֶנֶת לוֹמַר מֵתָה אֲחוֹתִי שֶׁתִּכָּנֵס לְבֵיתָהּ. וְאֵין הָאִישׁ נֶאֱמָן לוֹמַר מֵתָה אִשְׁתִּי שֶׁיִּשָּׂא אֶת אֲחוֹתָהּ עַד שֶׁיָּעִידוּ שְׁנֵי עֵדִים שֶׁמֵּתָה אֲחוֹתָהּ וְאַחַר כָּךְ תִּכָּנֵס לְבֵיתָהּ. שֶׁלֹּא הֶאֱמִינוּ עֵד אֶחָד אֶלָּא מִשּׁוּם הַתָּרַת עֲגוּנָה כְּמוֹ שֶׁבֵּאַרְנוּ:
11A woman's testimony is accepted with regard to the death of her husband, and she may marry [another man] or perform yibbum [on this basis]. Nevertheless, the testimony of a yevamah is not accepted with regard to the death of her yavam, and it is not considered to be sufficient basis for her to marry another man. The rationale is that the prohibition [against marrying another man when under obligation to a yavam] involves merely a negative commandment.24The punishment - lashes - is lesser, and the woman's children are not considered illegitimate. And therefore the woman may regard it casually.25Having relations with another man while married, by contrast, is a prohibition punishable by execution by the court, her children are considered illegitimate, and it brings severe retribution in the world to come. Because the prohibition against marrying while under obligation to a yavam is less severe, our Sages feared that the woman might lie about the yavam's death and transgress this prohibition.Similarly, the testimony of a yavam is not accepted with regard to the death of his brother, and it is not considered to be sufficient basis for him to marry his brother's wife. [We fear that] perhaps he desired her.Similarly, a woman's testimony is not accepted with regard to the death of her sister, and it is not considered to be sufficient basis for her to be permitted to marry her sister's husband.26It is forbidden for a husband to marry his wife's sister while his wife is alive. Our Sages feared that the second sister or the husband may desire to give false testimony, so that they can marry. [By the same token,] a man's testimony that his wife has died is not accepted as sufficient basis for him to marry her sister. In this instance, it is necessary that two witnesses testify that one sister has died before the other sister can enter her household. For the testimony of one witness was accepted only so that license to marry could be granted to a woman who would otherwise be forced to remain unmarried, as we have explained.27I.e., generally, the testimony of two witnesses is required with regard to matters involving marriage and divorce. As mentioned in the concluding passage of Hilchot Gerushin (cited in the notes on Halachah 6), in order to allow a woman to remarry, leniency is granted and we rely on the testimony of one witness. In this instance, however, there is no difficulty in the man's or the woman's remarrying; the only difficulty is that they cannot marry each other. In such an instance, our Sages were not willing to extend leniency.[There is a slight difficulty when comparing the Rambam's statements here to his statements at the conclusion of Hilchot Gittin. As explained by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33), the Rambam's wording indicates that, according to Scriptural law, with regard to a point of fact that can be verified, it is not necessary for two witnesses to testify, and the statements of one witness are sufficient. The leniency granted by our Sages was to accept the testimony of women, relatives and others whose testimony would not ordinarily be accepted. Here, however, the Rambam is stating (as he does in Hilchot Edut 5:2) that the acceptance of the testimony of a single witness is a leniency of Rabbinic origin. (See the Responsa of the Rivash, Responsum 181.)]
י״בלְפִיכָךְ הָאִשָּׁה שֶׁהָלְכָה הִיא וּבַעְלָהּ וִיבָמָהּ לִמְדִינַת הַיָּם וּבָאָה וְאָמְרָה מֵת בַּעְלִי וְאַחַר כָּךְ מֵת יְבָמִי. אוֹ שֶׁאָמְרָה מֵת יְבָמִי וְאַחַר כָּךְ מֵת בַּעְלִי הֲרֵי זוֹ אֵינָהּ נֶאֱמֶנֶת. אֲבָל אִם הָלְכָה הִיא וּבַעְלָהּ בִּלְבַד וּבָאָה וְאָמְרָה נִתַּן לִי יָבָם בִּמְדִינַת הַיָּם וָמֵת. בֵּין שֶׁאָמְרָה מֵת יְבָמִי וְאַחַר כָּךְ מֵת בַּעְלִי בֵּין שֶׁאָמְרָה מֵת בַּעְלִי וְאַחַר כָּךְ מֵת הַיָּבָם שֶׁנִּתַּן לִי הֲרֵי זוֹ נֶאֱמֶנֶת שֶׁהַפֶּה שֶׁאָסַר הוּא הַפֶּה שֶׁהִתִּיר:
12Accordingly,28I.e., based on the premise stated in the first clause of the previous halachah. when a woman, her husband and her yavam journey overseas, and she comes and says: "My husband died, and afterwards my yavam died," or "My yavam died, and then my husband died," her word is not accepted.29For the prevailing presumption when she departed was that she would be obligated to perform yibbum if her husband dies.If, however, she and her husband depart alone, and she returns and says: "A yavam was born for me overseas, but he died," her word is accepted, regardless of whether she says "My yavam died, and then my husband died," or "My husband died, and afterwards the yavam who was born for me died." [The rationale is] the source for the statements [on which basis the woman was] forbidden [states that she is] permitted.30The prevailing presumption when she departed was that she would not be obligated to perform yibbum if her husband dies. It is only because of her own statements that we might suspect that she is required to do so. Therefore, her statements are sufficient to offset this suspicion.
י״גהָאִשָּׁה שֶׁהָלְכָה הִיא וּבַעְלָהּ וּבְנָהּ לִמְדִינַת הַיָּם וּבָאָה וְאָמְרָה מֵת בַּעְלִי וְאַחַר כָּךְ מֵת בְּנִי נֶאֱמֶנֶת. שֶׁהֲרֵי הָיְתָה בְּחֶזְקַת הֶתֵּר לְזָר בְּעֵת שֶׁהָלְכָה. אָמְרָה מֵת בְּנִי וְאַחַר כָּךְ מֵת בַּעְלִי אֵינָהּ נֶאֱמֶנֶת לְהִתְיַבֵּם וְחוֹשְׁשִׁין לִדְבָרֶיהָ וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת:
13[The following rules apply when] a woman journeys overseas together with her husband and her son: If she returns and says: "My husband died and then my son died," her word is accepted, for at the time she departed the prevailing presumption was that she was permitted to marry another man.If she says: "My son died, and afterwards my husband died," her word is not accepted as the basis for yibbum.31We suspect that perhaps she is lying in order to marry her brother-in-law. Nevertheless, we grant a certain degree of credence to her words,32I.e., were it not for her statement that her son died first, she would be permitted to marry without any restrictions. Because we give her statements some credence, we require her to perform chalitzah. and she should perform chalitzah, but not yibbum.
י״דהָלְכָה הִיא וּבַעְלָהּ בִּלְבַד וּבָאָה וְאָמְרָה נִתַּן לִי בֵּן בִּמְדִינַת הַיָּם וָמֵת וְאַחַר כָּךְ מֵת בַּעְלִי נֶאֱמֶנֶת וּמִתְיַבֶּמֶת שֶׁהֲרֵי הָיְתָה בְּחֶזְקַת הֶתֵּר לִיבָמָהּ בְּעֵת שֶׁהָלְכָה. אָמְרָה מֵת בַּעְלִי וְאַחַר כָּךְ מֵת הַבֵּן שֶׁנִּתַּן לִי אֵינָהּ נֶאֱמֶנֶת לִפְטֹר עַצְמָהּ מִן הַיִּבּוּם וּמִן הַחֲלִיצָה וְחוֹשְׁשִׁין לִדְבָרֶיהָ וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת:
14[The following rules apply when] a woman journeys overseas together with her husband alone: If she says, "I "bore a son overseas, he died, and then my husband died," her word is accepted and permitted her to perform yibbum. [The rationale is that] the prevailing presumption when she departed was that she was permitted to perform yibbum.If she says: "My husband died, and then the son who was born to me died," her statements are not accepted as grounds to free her of the obligation for yibbum or chalitzah. Nevertheless, we grant a certain degree of credence to her words, and she should perform chalitzah, but not yibbum.33I.e., were it not for her statement that her son died after her husband, she would be required to perform yibbum. We do not accept her word to the extent that we allow her to marry without restrictions. Nevertheless, we give her statements some credence and forbid the performance of yibbum, lest in fact there be no obligation to do so.
ט״ובַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁהָיְתָה פְּסוּלָה לִכְהֻנָּה מִתְּחִלָּה כְּגוֹן שֶׁהָיְתָה גְּרוּשָׁה אוֹ חֲלָלָה אוֹ שֶׁאָמְרָה בַּמְּעָרָה הָיִינוּ כְּשֶׁמֵּת. אֲבָל אִם אֵין הַדָּבָר כֵּן אֵינָהּ חוֹלֶצֶת. שֶׁמָּא תַּחֲלֹץ וְיָבוֹאוּ עֵדִים וְיָעִידוּ שֶׁהַדָּבָר כְּמוֹ שֶׁאָמְרָה וְהַבַּעַל מֵת תְּחִלָּה וְנִמְצֵאת חֲלִיצָה זוֹ אֵינָהּ כְּלוּם וְתִנָּשֵׂא לְכֹהֵן וְיִרְאֶה הָרוֹאֶה אוֹתָהּ שֶׁחָלְצָה וְנִשֵּׂאת לְכֹהֵן וִידַמֶּה שֶׁהַחֲלוּצָה מֻתֶּרֶת לִכְהֻנָּה וְהוּא אֵינוֹ יוֹדֵעַ בָּעֵדִים שֶׁבָּאוּ. לְפִיכָךְ לֹא תַּחֲלֹץ וְלֹא תִּתְיַבֵּם אֶלָּא תִּשָּׁאֵר בְּחֶזְקַת זְקוּקָה כְּשֶׁיָּצְאָה עַד שֶׁיָּבוֹאוּ עֵדִים:
15When does the above apply? When she was forbidden to the priesthood at the outset - e.g., she had been divorced or a chalalah34A woman who is born from a relationship that is forbidden to a priest, but not to an Israelite. beforehand,35In which case, the chalitzah does not make any difference, for the woman was forbidden to the priesthood regardless. - or she said: "We were [alone] in a cave when he died."36In which case, there is no apprehension of witnesses coming.If this is not the situation, she may not perform chalitzah, lest she perform chalitzah and then witnesses come and confirm her statements that her husband died first. Thus, it will be evident that this chalitzah was unnecessary, and she [is permitted to] marry a priest. An observer may see that she performs chalitzah and then marries a priest, and he would think that a priest is permitted to marry a woman who performed chalitzah, for he is unaware that witnesses came. Therefore, she should not perform chalitzah, nor should she perform yibbum.37For according to her testimony, she is forbidden to do so. Instead, she should remain under the obligation to perform yibbum as she was when she departed, until witnesses come [and clarify the situation].38Note the discussion of this ruling by the Beit Shmuel 156:17, and the opinion mentioned there that this ruling applies only when there were witnesses who testified that the woman's husband and son both died. Otherwise, the woman's word would be accepted based on the principle of migo - i.e., if she desired to lie, she could have said that her son was still alive.
ט״זוְכֵן אִשָּׁה שֶׁהָלַךְ בַּעְלָהּ וְצָרָתָהּ לִמְדִינַת הַיָּם וּבָאוּ שְׁנַיִם וְאָמְרוּ לָהּ מֵת בַּעְלֵךְ הֲרֵי זוֹ לֹא תַּחֲלֹץ וְלֹא תִּתְיַבֵּם לְעוֹלָם עַד שֶׁיִּוָּדַע אִם יָלְדָה צָרָתָהּ אוֹ לֹא יָלְדָה. וְלָמָּה לֹא תַּחֲלֹץ אַחַר תִּשְׁעָה חֳדָשִׁים מִמִּיתַת הַבַּעַל וְתִהְיֶה מֻתֶּרֶת לְזָר עַל כָּל פָּנִים שֶׁאִם יָלְדָה צָרָתָהּ הֲרֵי נִפְטְרָה זוֹ וְאִם לֹא יָלְדָה הֲרֵי נֶחְלְצָה. גְּזֵרָה שֶׁמָּא יִוָּדַע אַחַר הַחֲלִיצָה שֶׁיָּלְדָה צָרָתָהּ וָלָד שֶׁל קַיָּמָא וְנִמְצֵאת זֹאת שֶׁאֵינָהּ חֲלוּצָה וְתִנָּשֵׂא לְכֹהֵן אַחַר שֶׁנֶּחְלְצָה וְיֹאמַר הָרוֹאֶה שֶׁלֹּא יָדַע בָּעֵדִים שֶׁבָּאוּ שֶׁהַחֲלוּצָה מֻתֶּרֶת לְכֹהֵן וְיָעִיד שֶׁרָאָה אוֹתָהּ נִשֵּׂאת לִכְהֻנָּה עַל פִּי בֵּית דִּין. לְפִיכָךְ אִם הָיְתָה אֲסוּרָה לִכְהֻנָּה מִתְּחִלָּתָהּ הֲרֵי זוֹ חוֹלֶצֶת לְאַחַר תִּשְׁעָה וְתִנָּשֵׂא לְזָר. אֲבָל זוֹ הַצָּרָה שֶׁהָיְתָה עִם בַּעְלָהּ כְּשֶׁמֵּת תַּמְתִּין תִּשְׁעִים יוֹם כִּשְׁאָר הַיְבָמוֹת וְתַחְלֹץ אוֹ תִּתְיַבֵּם וְלֹא תָּחוּשׁ לְצָרָתָהּ שֶׁבַּמְּדִינָה הָאַחֶרֶת הוֹאִיל וְלֹא הָיָה בַּעְלָהּ עִמָּהּ בַּמְּדִינָה:
16Similar laws apply when a woman's husband and a second wife journeyed overseas, and two witnesses came and told [the first wife], "Your husband died." She should not perform chalitzah, nor should she perform yibbum until she knows whether or not her husband's second wife bore a child.39This law applies even if the second wife was not pregnant when she left. Our Sages considered the possibility of the woman becoming pregnant as a reasonable probability.Why should she not perform chalitzah nine months after the death of her husband, in which case she would be permitted to marry another man from any standpoint? If the other woman bore a child, that frees her of all obligations. And if the other woman did not bear a child, she [should be permitted, because] she performed chalitzah.[Our Sages prohibited this] as a decree, lest after the woman performed chalitzah, it become known that her husband's other wife bore a viable child. This woman will then not be [bound by the prohibitions of] a woman who performed chalitzah, and she may marry a priest despite performing chalitzah. An observer - who did not know about the witnesses [who informed her of the birth of her husband's child] - might conclude that a priest is permitted to marry a woman who performed chalitzah, and he will testify that a Rabbinic court gave her license to marry a priest. Therefore, if she was forbidden to the priesthood at the outset, she may perform chalitzah nine [months after the death of her husband and] she may marry another man.The wife who accompanied her husband when he died should wait 90 days, as other yevamot.40See Chapter 1, Halachah 19. Thus, she may perform chalitzah or yibbum. She need not worry about [the possibility of] the wife in the country [giving birth], for that woman was not in the same country as her husband.41We do not consider the possibility that the woman was impregnated by her husband before he departed on the journey and did not realize this until he had already departed.
י״זהָאִשָּׁה שֶׁמֵּת בַּעְלָהּ וְהָיְתָה לָהּ חָמוֹת בִּמְדִינַת הַיָּם אֵינָהּ חוֹשֶׁשֶׁת שֶׁמָּא יָלְדָה חֲמוֹתָהּ וּכְבָר נִתַּן לָהּ יָבָם בִּמְדִינָה אַחֶרֶת. שֶׁלֹּא גָּזְרוּ בְּדָבָר זֶה. אֶלָּא נַעֲמִיד אוֹתָהּ עַל חֶזְקָתָהּ וַהֲרֵי הִיא מֻתֶּרֶת. וְהוּא הַדִּין לְאִשָּׁה שֶׁמֵּת בַּעְלָהּ וְהָיָה לוֹ בֵּן בִּמְדִינָה אַחֶרֶת הֲרֵי זוֹ מֻתֶּרֶת לְזָר וְאֵין חוֹשְׁשִׁין שֶׁמָּא מֵת הַבֵּן אֶלָּא הַעֲמֵד אוֹתָהּ עַל חֶזְקָתָהּ:
17When a woman's husband dies, and her mother-in- law is living overseas, she need not suspect that her mother-in-law bore a child [before her husband's death], and that there is a yavam for her living in another country. Our Sages did not institute a decree of this nature.42For even if we presume that the mother-in-law will become pregnant, it is more probable that she will miscarry or give birth to a girl (in which cases, the mitzvah of yibbum would not apply) than that she bear a son (Beit Shmuel 157:11). Instead, they allowed the prevailing presumption [regarding her status to continue], and she is permitted to remarry.The same concept applies when a woman's husband dies, and her son is living overseas - she need not suspect that her son died [before her husband's death]. Instead, we allow the prevailing presumption [regarding her status to continue].
י״חיָצָאת חֲמוֹתָהּ מְעֻבֶּרֶת הֲרֵי זוֹ חוֹשֶׁשֶׁת וְלֹא תִּנָּשֵׂא לְזָר עַד שֶׁתֵּדַע מֶה הָיָה סוֹף עִבּוּר חֲמוֹתָהּ שֶׁמָּא נוֹלַד לָהּ יָבָם קֹדֶם מִיתַת הַבַּעַל:
18If, however, the mother-in-law departed [overseas] while she was pregnant, the daughter-in-law must bear that fact in mind. She may not marry another man until she knows the fate of her mother-in-law's pregnancy. Perhaps a yavam for her was born before her husband died.
י״טהָאִשָּׁה שֶׁהָלַךְ בַּעְלָהּ וּבְנָהּ לִמְדִינַת הַיָּם וּבָאוּ וְאָמְרוּ לָהּ מֵת בַּעְלֵךְ וְאַחַר כָּךְ מֵת בְּנֵךְ וְנִשֵּׂאת וְאַחַר כָּךְ נוֹדַע שֶׁחִלּוּף הָיוּ הַדְּבָרִים תֵּצֵא וְהַוָּלָד כָּשֵׁר. אָמְרוּ לָהּ מֵת בְּנֵךְ וְאַחַר כָּךְ מֵת בַּעְלֵךְ וְנִתְיַבְּמָה וְאַחַר כָּךְ נוֹדַע שֶׁהָיוּ הַדְּבָרִים חִלּוּף תֵּצֵא וְהַוָּלָד שֶׁנּוֹלַד לִפְנֵי הַשְּׁמוּעָה אוֹ לְאַחַר הַשְּׁמוּעָה מַמְזֵר:
19[The following laws apply when] a woman's husband and son went overseas, and [witnesses] came and told her: "Your husband died and then your son died." If she married,43For according to the testimony she was given, her husband was survived by a son, and the mitzvot of yibbum and chalitzah do not apply. and later discovered that they died in the opposite order,44In which case her husband would have died without children, and she would be obligated to perform yibbum or chalitzah. she must leave her second husband.45See Chapter 2, Halachah 18. None of the children she bore him is considered illegitimate, however.46For it is only when a child is born from forbidden relations that are punishable by karet that this status is incurred (Yevamot 49a).[More stringent rules apply if she was told: "Your son died and then your husband died," and on that basis she performed the rite of yibbum and then discovered that they died in the opposite order. She is obligated to leave her second husband. All the children she bore him - both those born before she received this notice and those born afterwards - are considered illegitimate.47For her relations with her brother-in-law were prohibited by a transgression punishable by karet. The fact that she violated this prohibition unwittingly does not change the status of her children.
ד׳
א׳כֵּיצַד מִצְוַת חֲלִיצָה. הַיְבָמָה הוֹלֶכֶת אַחַר הַיָּבָם בְּמָקוֹם שֶׁהוּא שָׁם וּבָאָה לַדַּיָּנִין. וְהֵן קוֹרְאִין לוֹ וְנוֹתְנִין לוֹ עֵצָה הַהוֹגֶנֶת לוֹ וְלָהּ. אִם עֵצָה טוֹבָה לְיַבֵּם יוֹעֲצִין אוֹתוֹ לְיַבֵּם. וְאִם עֵצָה טוֹבָה לַחֲלֹץ כְּגוֹן שֶׁהָיְתָה הִיא יַלְדָּה וְהוּא זָקֵן אוֹ הִיא זְקֵנָה וְהוּא יֶלֶד יוֹעֲצִין אוֹתוֹ לַחֲלֹץ:
1What does the mitzvah of chalitzah entail? The yevamah goes to the yavam's place of residence1Sanhedrin 31b derives this from Deuteronomy 25:8: "And the elders of his city shall call him..." - i.e., "his city" and not her city. and approaches the judges. They call the yavam and give him advice that is appropriate for him and for her.If the appropriate advice is for them to perform yibbum, they advise him2Our text is based on authoritative manuscripts and early printings of the Mishneh Torah. This version appears appropriate, for the decision to perform yibbum or chalitzah is that of the remaining brother alone. to perform yibbum.3This follows the Rambam's perspective (Chapter 1, Halachah 2) that, in general, it is preferable to perform yibbum rather than chalitzah. Even so, the judges should take counsel and see whether the couple appear appropriate for each other. If the appropriate advice is for them to perform chalitzah - e.g., she is young and he is older, or she is older and he is young4See Hilchot Issurei Bi'ah 21:26. - they advise him to perform chalitzah.
ב׳וּצְרִיכִין הַדַּיָּנִין לִקְבֹּעַ מָקוֹם שֶׁיֵּשְׁבוּ בּוֹ וְאַחַר כָּךְ תַּחֲלֹץ שָׁם בִּפְנֵיהֶם שֶׁנֶּאֱמַר (דברים כה ז) ״וְעָלְתָה יְבִמְתּוֹ הַשַּׁעְרָה אֶל הַזְּקֵנִים״ וְגוֹ'. לֹא נוֹעֲדוּ וְלֹא קָבְעוּ מָקוֹם אֶלָּא נִקְרוּ נִקְרָה וְנִקְרֵאת הִיא וְהוּא לִפְנֵיהֶן וְחָלְצוּ חֲלִיצָתָהּ כְּשֵׁרָה:
2The judges should first establish the place where they will hold session,5Darchei Moshe (Even HaEzer 169) states that establishing a place for the chalitzah beforehand serves to publicize the matter. and then she should perform chalitzah there in their presence, as [Deuteronomy 25:7] states: "And his yevamah shall ascend to the gate, [where] the elders [hold court]...."If [the judges] did not speak about the matter, nor did they establish a place, and [the yevamah] and [the yavam] chanced upon them and performed chalitzah, the chalitzah is acceptable.
ג׳וּמְלַמְּדִין אוֹתָהּ וְאֶת הַיָּבָם לִקְרוֹת עַד שֶׁהוּא וְהִיא יִהְיוּ רְגִילִין וְתִהְיֶה יְכוֹלָה לִקְרוֹת (דברים כה ז) ״לֹא אָבָה״ בִּנְשִׁימָה אַחַת וְאַחַר כָּךְ תֹּאמַר יַבְּמִי. כְּדֵי שֶׁלֹּא יִהְיֶה מַשְׁמַע דְּבָרֶיהָ אָבָה יַבְּמִי:
3Both [the yevamah] and the yavam should be taught to read until they are familiar [with the words they must recite].6For, as explained in the halachot to follow, both the yavam and the yevamah must recite certain phrases within the chalitzah ceremony.The yevamah should be trained to say lo avah in one breath, [pause,] and say yabmi, so that her words cannot be interpreted to mean avah yabmi.7Lo avah yabmi means "My yavam did not desire" [Deuteronomy 25:7]. Improper emphasis could, however, cause the statement to be interpreted as: "No, my yavam desired."
ד׳וּמֵאַחַר שֶׁתִּהְיֶה רְגִילָה לִקְרוֹת אַף עַל פִּי שֶׁלֹּא קָרְאָה בִּנְשִׁימָה אַחַת אֵין מַקְפִּידִין עַל זֶה. אֲבָל אִם אֵינָהּ יְכוֹלָה מַרְגִּילִין אוֹתָהּ עַד שֶׁתֵּדַע:
4If the yevamah is familiar [with the phrase] she must recite, we are not fastidious about her reading [the above phrase] in one breath. If, however, she is unable [to read], we should train her until she does so [properly].
ה׳וְהַחֲלִיצָה בַּיּוֹם וְלֹא בַּלַּיְלָה. וּבִפְנֵי שְׁלֹשָׁה שֶׁיּוֹדְעִין לְהַקְרוֹת. וְאִם אֶחָד מִן הַשְּׁלֹשָׁה גֵּר פָּסוּל. וַאֲפִלּוּ הָיָה אָבִיו גֵּר וְאִמּוֹ יִשְׂרְאֵלִית לֹא תַּחֲלֹץ עַד שֶׁיִּהְיֶה אָבִיו וְאִמּוֹ מִיִּשְׂרָאֵל. וּמִצְוָתָהּ בַּחֲמִשָּׁה כְּדֵי לְפַרְסֵם הַדָּבָר. וְאוֹתָן הַשְּׁנַיִם אֲפִלּוּ הָיוּ עַמֵּי הָאָרֶץ:
5Chalitzah must be performed during the day and not at night.8For chalitzah is considered as a "judgment," and judgments may not be made at night (Yevamot 104a). (See also Halachah 16.) [The rite] must be performed in the presence of [at least] three individuals9I.e., there is no need for these individuals to be formally ordained as judges. Nevertheless, as the Rambam states in his Commentary on the Mishnah (Yevamot 12:1), and as the Shulchan Aruch (Even HaEzer 169:1) states, at the outset it is proper for three ordained judges to preside over the ceremony. who know how to read.10For they must read the phrases for the yavam and the yevamah, as will be stated later in the text. See Halachah 15, which states that this requirement is a factor only a priori.If one of the three individuals is a convert, [the chalitzah] is unacceptable. Even a man whose father is a convert, and his mother a native-born Jewess,11The Ramah (Even HaEzer 169:2) rules that a judge whose father is a native-born Jew and his mother is a convert may serve in this capacity. should not participate in the chalitzah ceremony. [Instead, it is necessary,] that both his father and his mother be native-born Jews.12Deuteronomy 25:10 states: "And his name will be called in Israel...." This phrase implies that only those of Jewish ancestry can serve in this capacity.It is a mitzvah for five men [to observe the rite], so that the matter will be publicized.13This serves two purposes. It is of benefit to the woman, for men will become aware that she is eligible to remarry. It also will make known the fact that she is forbidden to a priest (Rashi, Yevamot 101b). The other two may even be common people.14Who do not know how to read. For their presence is only for the sake of making the matter known.
ו׳כֵּיצַד חוֹלְצִין. מְבִיאִין לוֹ מִנְעָל שֶׁל עוֹר שֶׁיֵּשׁ לוֹ עָקֵב וְאֵינוֹ תָּפוּר בְּפִשְׁתָּן וְלוֹבְשׁוֹ בְּיָמִין וְקוֹשֵׁר רְצוּעוֹתָיו עַל רַגְלוֹ. וְעוֹמֵד הוּא וְהִיא בִּפְנֵי בֵּית דִּין וּמַקְרִין לַיְבָמָה בִּלְשׁוֹן הַקֹּדֶשׁ (דברים כה ז) ״מֵאֵן יְבָמִי״ וְגוֹ'. וְאַחַר כָּךְ מַקְרִין לַיָּבָם (דברים כה ח) ״לֹא חָפַצְתִּי לְקַחְתָּהּ״. וְנוֹעֵץ רַגְלוֹ בָּאָרֶץ וְהִיא יוֹשֶׁבֶת וּפוֹשֶׁטֶת יָדָהּ בִּפְנֵי בֵּית דִּין וּמַתֶּרֶת רְצוּעוֹת הַמִּנְעָל מֵעַל רַגְלוֹ וְחוֹלֶצֶת הַמִּנְעָל וּמַשְׁלֶכֶת אוֹתוֹ לָאָרֶץ וּמִשֶּׁיִּשָּׁמֵט רֹב הֶעָקֵב הֻתְּרָה הַיְבָמָה לְזָר:
6How is the rite of chalitzah performed? A leather15The entire shoe (according to the Ramah, Even HaEzer 169:15, even its straps must be made of leather). shoe16See Yevamot 102a and the Shulchan Aruch (ibid.:16), which discuss whether a sandal or a shoe should be used. with a heel, that is not sewn with linen threads,17There are certain opinions that allow a shoe that is sewn with linen, but both the Shulchan Aruch and the Ramah (ibid. 169:15) follow the Rambam's view. is brought to [the yavam].18At the outset, the shoe should belong to the yavam. (See the Shulchan Aruch (ibid.:14). He places it on his right foot and ties its straps around his foot.19The yavam should not be wearing socks, and no mud should be stuck to his feet (Shulchan Aruch, ibid.:26).Both [the yavam] and [the yevamah] stand before the court.20The Sifre derives this concept from Deuteronomy 25:8, which states: "And he shall stand and say." After the fact, however, if the chalitzah was performed while the yavam and the yevamah were seated, it is acceptable (Ramah, ibid. 169:12). The phrase [Deuteronomy 25:7], Me'ein yevami.... ("My yavam refuses....") is read in Hebrew for the yevamah to repeat. Afterwards, the phrase [ibid.:8], Lo chafatzti lekachtah ("I do not desire to take her") is read for the yavam to repeat.He then presses his foot to the ground.21The Tur states in the name of Rabbenu Yitzchak Alfasi that if the yavam does not press his foot to the ground, the chalitzah is not acceptable. The Shulchan Aruch (ibid.:32) quotes this as a minority opinion. She sits [on the ground],22The Shulchan Aruch (ibid.:30) differs and follows the opinion of the Tur, who states that the chalitzah should be performed while the woman is standing and bends to untie and remove the yavam's shoe. extends her hand before the court, loosens the straps of his shoe, removes it,23The Shulchan Aruch (ibid.) states that the yevamah should untie and remove the shoe with her right hand alone. The Ramah states, however, that, after the fact, the chalitzah is acceptable if she uses her left hand. and throws it to the ground.24The Tur and others question the rationale for this act. Significantly, the commentaries cite the Rambam's source as the Zohar, Volume III, page 180a, which states that the removal of the shoe signifies the cutting of the woman's connection with her deceased husband. At the moment she removes the majority of the heel [of the shoe from his foot], she becomes free to marry another man.
ז׳וְאַחַר כָּךְ עוֹמֶדֶת וְיוֹרֶקֶת בָּאָרֶץ כְּנֶגֶד פָּנָיו רֹק הַנִּרְאֶה לַדַּיָּנִין. שֶׁמִּצְוַת חֲלִיצָה שֶׁיִּהְיוּ שְׁנֵיהֶן עוֹמְדִין בִּשְׁעַת קְרִיאָה וּבִשְׁעַת רְקִיקָה וּצְרִיכִין הַדַּיָּנִין לִרְאוֹת הָרֹק הַיּוֹצֵא מִפִּיהָ. וְאַחַר כָּךְ מַקְרִין לָהּ (דברים כה ט) ״כָּכָה יֵעָשֶׂה לָאִישׁ אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו״ (דברים כה י) ״וְנִקְרָא שְׁמוֹ בְּיִשְׂרָאֵל בֵּית חֲלוּץ הַנָּעַל״:
7Afterwards, she stands and spits on the earth before his face,25Although the literal meaning of Deuteronomy 25:9 is "she spits in his face," Yevamot 106b explains that in a halachic context, the phrase should be interpreted as above. in a manner that the spittle can be seen by the judges. For the mitzvah of chalitzah requires that both [the yevamah and the yavam] should stand when they recite [the phrases they must say] and when she spits. The judges must see the spittle that emerges from her mouth.26For Deuteronomy, ibid., states that she must spit "before the eyes of the elders."Afterwards, the phrase Kachah ye'aseh..., "This is what should be done to a man who does not build his brother's household. And his [family] shall be called within Israel 'the household of the one whose shoe was removed' [Deuteronomy 25:9-10] is read for the yevamah to repeat.
ח׳הַכּל בִּלְשׁוֹן הַקֹּדֶשׁ שֶׁנֶּאֱמַר (דברים כה ט) ״כָּכָה״ בַּלָּשׁוֹן הַזֶּה. וְכָל הַיּוֹשְׁבִין שָׁם עוֹנִים אַחֲרֶיהָ (דברים כה י) ״חֲלוּץ הַנָּעַל״ שָׁלֹשׁ פְּעָמִים. וְצָרִיךְ שֶׁתִּתְכַּוֵּן הַיְבָמָה שֶׁתַּחֲלֹץ לוֹ וְיִתְכַּוֵּן הוּא שֶׁיַּחֲלֹץ לָהּ. וְיַעֲשׂוּ מַעֲשִׂים אֵלּוּ לִשְׁמָן. וְהַסּוּמָא אֵינוֹ חוֹלֵץ שֶׁנֶּאֱמַר (דברים כה ט) ״וְיָרְקָה בְּפָנָיו״ וְאֵין זֶה רוֹאֶה הָרֹק:
8All [the statements mentioned] above should be made in Hebrew. This is derived from the phrase "This is what" [in the above verse, which is interpreted] to mean "with these words."All those seated27The Mishnah (Yevamot 12:6) and the Shulchan Aruch (Even HaEzer 169:42) mention "those standing there." in attendance recite chalutz hana'al, "the one whose shoe was removed," three times.28We find a threefold repetition of a phrase employed by the Sages as a means of publicizing the matter. See Hilchot Temidim UMusafim 7:11.The Halachot Gedolot interprets the threefold repetition as a reprimand. It is as if God told him: "Wicked man! With your body, you could have performed a mitzvah, and you refused.... The judges will proclaim: 'The one whose shoe was removed' like a mourner. 'The one whose shoe was removed' like one placed under a ban of ostracism. 'The one whose shoe was removed' like a person who rebels against [God's] commandments."The yevamah must remove his shoe with willful intent, and [the yavam] must have the intent that he performs this rite on her behalf. They must perform these acts with the intent of enabling her to marry other men.29Our translation of lishmah is based on the Shulchan Aruch (Even HaEzer 169:44).A blind man30I.e., one who is blind in both eyes (Hagahot Maimoniot, Ramah, loc. cit.:48). should not perform chalitzah,31As reflected by Halachah 15, this is just an a priori ruling. After the fact, the chalitzah is acceptable.The Ra'avad states that this law applies only when there is another brother who can perform chalitzah. If there is not another brother, the blind man should perform this ritual on the woman's behalf. Although the Maggid Mishneh contests the Ra'avad's decision, the Beit Shmuel 169:48 upholds it. for [Deuteronomy 25:9] states: "[She] shall spit before his face," and he cannot see her spittle.
ט׳נִמְצָא סֵדֶר הַחֲלִיצָה כָּךְ הוּא. קוֹרְאָה הִיא תְּחִלָּה (דברים כה ז) ״מֵאֵן יְבָמִי לְהָקִים לְאָחִיו שֵׁם בְּיִשְׂרָאֵל לֹא אָבָה יַבְּמִי״. וְאַחַר כָּךְ הוּא אוֹמֵר (דברים כה ח) ״לֹא חָפַצְתִּי לְקַחְתָּהּ״. וְאַחַר כָּךְ תַּחֲלֹץ. וְאַחַר כָּךְ תָּרֹק. וְאַחַר כָּךְ תִּקְרָא (דברים כה ט) ״כָּכָה יֵעָשֶׂה לָאִישׁ אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו״ (דברים כה י) ״וְנִקְרָא שְׁמוֹ בְּיִשְׂרָאֵל בֵּית חֲלוּץ הַנָּעַל״:
9Thus, the order of chalitzah should be as follows: First she recites: "My yavam refuses to perpetuate his brother's name within Israel. My yavam did not desire [to marry me].Afterwards, [the yavam] says: "I do not desire to take her." At which point, she removes his shoe and then spits. Afterwards, she recites: "This is what should be done to a man who does not build his brother's household. And his [family] shall be called within Israel 'the household of the one whose shoe was removed.'
י׳וְאֵין הַסֵּדֶר מְעַכֵּב אֶלָּא אִם לֹא קָרְאָה בַּתְּחִלָּה לֹא הִיא וְלֹא הוּא אוֹ שֶׁרָקְקָה וְאַחַר כָּךְ חָלְצָה אוֹ שֶׁקָּרְאָה וְאַחַר כָּךְ רָקְקָה חֲלִיצָתָהּ כְּשֵׁרָה:
10This order is not, however, an absolute requirement. Instead, even though neither [the yevamah], nor [the yavam] recited [the required phrases], she spit and then removed his shoe, or she recited [the phrases] and then spit, the chalitzah is acceptable.
י״אוְלָמָּה לֹא תַּחֲזֹר וְתָרֹק עַל הַסֵּדֶר שֶׁמָּא יֹאמְרוּ רְקִיקָה לְבַדָּהּ אֵינָהּ כְּלוּם וְאֵינָהּ פּוֹסֶלֶת מִן הָאַחִין:
11Why, [in the above instance,] should she not spit [again], [so that all the required activities] will be performed in the proper order? Lest people [mistakenly] think that spitting alone is of no consequence, and [they err and think] that it does not prevent [the yavam's] other brothers [from performing yibbum with the yevamah].32See Halachah 14.
י״בחָלְצָה בִּלְבַד וְלֹא קָרְאָה וְלֹא רָקְקָה חֲלִיצָתָהּ כְּשֵׁרָה. וְאֵין צָרִיךְ לוֹמַר שֶׁחָלְצָה וְקָרְאָה וְלֹא רָקְקָה אוֹ שֶׁחָלְצָה וְרָקְקָה וְלֹא קָרְאָה שֶׁחֲלִיצָתָהּ כְּשֵׁרָה:
12[Even if] she merely removed his shoe, did not recite [the required phrases], and did not spit, the chalitzah is acceptable. Needless to say, if she removed his shoe and recited the required phrases, but did not spit, or if she removed his shoe and spat, but did not recite the required phrases, the chalitzah is acceptable.33Rabbi Eliezer maintains that the phrase (Deuteronomy 25:9 , kachah ye'aseh, "this is what should be done," implies that all the deeds and the order required by the Torah is imperative for the chalitzah to be effected. The final opinion of Rabbi Akiva does not, however, accept this view (Yevamot 104b).
י״גבַּמֶּה דְּבָרִים אֲמוּרִים כְּשֶׁהָיוּ יְכוֹלִין לְדַבֵּר שֶׁהֲרֵי הֵן רְאוּיִין לִקְרוֹת. אֲבָל אִלֶּמֶת אוֹ אִלֵּם אֵינָן חוֹלְצִין וְאִם חָלְצוּ חֲלִיצָתָן פְּסוּלָה. וְאֵינָן כְּחֵרֵשׁ וְחֵרֶשֶׁת שֶׁחָלְצוּ שֶׁלֹּא עָשׂוּ כְּלוּם. לְפִי שֶׁהַחֵרֵשׁ אוֹ הַחֵרֶשֶׁת אֵינָן בְּנֵי דַּעַת:
13When does the above apply? When [the yevamah and the yavam] are able to speak, for then they are able to recite [the appropriate phrases].34This reflects a Talmudic principle frequently applied and stated explicitly with regard to the meal offering brought in the Temple. These offerings consist of flour and oil. The flour and the oil should be mixed together. Nevertheless, as long as the quantity of flour is not too large to be mixed with the oil, the offering is acceptable, even when in actual fact the two were not mixed together (Rashi, Yevamot 104b). When, however, [the yevamah] or [the yavam] is dumb, they may not perform chalitzah, and if they do perform chalitzah, the chalitzah is not acceptable.35The difference between a chalitzah that is pasul, "not acceptable," and a chalitzah that is not significant at all is discussed in Halachah 26.[Their deeds are, nevertheless, effective to a certain degree.] They are not comparable to a chalitzah performed by [a yevamah] or [a yavam] who was a deaf-mute, in which case their deeds are of no consequence whatsoever,36As mentioned in the Maggid Mishneh, the Rambam's view is dependent on the Tosefta, while on the surface, the Mishnah (Yevamot 104b) appears to accept the position that a chalitzah performed by a deaf-mute is unacceptable, but not of no consequence. The Maggid Mishneh attempts to justify the Rambam's ruling, but notes that the Ramban and the Rashba follow the latter view. [Significantly, in his Commentary on the Mishnah (Yevamot 12:4), the Rambam also appears to favor the latter view, and his decision in the Mishneh Torah represents a reversal of his thinking.] The Shulchan Aruch (Even HaEzer 169:44) mentions both views without appearing to favor either one. for a deaf-mute is not of sufficient mental capacity to take responsibility for his [or her] actions.
י״דרָקְקָה בִּלְבַד שֶׁלֹּא חָלְצָה וְלֹא קָרְאָה. אוֹ שֶׁרָקְקָה וְקָרְאָה וְלֹא חָלְצָה הֲרֵי זוֹ כַּחֲלִיצָה פְּסוּלָה. קָרְאָה הִיא וְהוּא וְלֹא חָלְצָה וְלֹא רָקְקָה לֹא עָשָׂה כְּלוּם שֶׁנֶּאֱמַר (דברים כה ט) ״כָּכָה יֵעָשֶׂה לָאִישׁ״. שֶׁהַמַּעֲשֶׂה שֶׁהוּא הַחֲלִיצָה וְהָרְקִיקָה הוּא שֶׁמּוֹעִיל אֲבָל הַקְּרִיאָה אֵינָהּ מְעַכֶּבֶת וְאֵינָהּ מוֹעֶלֶת:
14If [the yevamah] only spits, without removing [the yavam's shoe] or reciting [the appropriate phrases], or spits and recites [the appropriate phrases], without removing [the yavam's shoe], it is as if she has performed an unacceptable chalitzah.37As mentioned in Halachah 26, the chalitzah does not permit the yevamah to remarry, but prevents her from performing yibbum.There is a difference of opinion among the commentaries whether the effectiveness of spitting is a Scriptural law or a Rabbinic institution. The Maggid Mishneh states that it appears that the Rambam is deriving the concept from the exegesis of a verse, but this is not accepted by all authorities.If both [the yevamah and the yavam] recite [the appropriate phrases], but the yevamah does not remove [the yavam's shoe] or spit, they have not accomplished anything.38Yibbum is permitted, and she is not disqualified from marrying into the priesthood. [This is implied by the verse:] "This is what should be done to a man" - i.e., a deed removing the shoe or spitting has an effect. The recitation of the verses, by contrast, is not an absolute requirement, nor does it have any effect [on its own].39Yevamot 105a distinguishes between spitting and the recitation of the verses as follows: Spitting should be carried out after the removal of the yavam's shoe. Therefore, if it is performed before the removal of the shoe, it is considered a distinct act. The recitation of the verses, by contrast, should be performed before the removal of the shoe. An observer will thus realize that the fundamental aspect of the ceremony is still to be performed.
ט״וחָלְצָה וְרָקְקָה וְקָרְאָה וְהֵם יוֹשְׁבִין אוֹ מֻטִּין עַל צִדֵּיהֶן. אוֹ שֶׁהָיָה שְׂרוֹךְ הַנַּעַל קָשׁוּר עַל שׁוֹקוֹ מִן הָאַרְכֻּבָּה וּלְמַטָּה. אוֹ שֶׁחָלְצָה בִּפְנֵי שְׁלֹשָׁה עַמֵּי הָאָרֶץ שֶׁאֵינָן יוֹדְעִין לְהַקְרוֹת. וְכֵן הַסּוּמָא שֶׁחָלַץ. חֲלִיצָתוֹ כְּשֵׁרָה:
15If [the yevamah] removes [the yavam's shoe], spits and recites [the appropriate phrases] while they are sitting, or lying on their sides,40Instead of the two standing when she spits and they recite the verses, and the yavam's standing, as mentioned in Halachot 6 and 7. if the straps of the [yavam's] shoe are tied on his leg below the knee,41And not on his foot itself, as mentioned in Halachah 6. or if she performed chalitzah in the presence of three common people who are not able to read the verses [which the two recite],42Instead of judges who know how to read, as stated in Halachah 5. the chalitzah is acceptable. Similarly, if [a yavam who is] blind43Although at the outset, a blind person should not perform this act as stated in Halachah 8. performs chalitzah, [the chalitzah is acceptable].
ט״זחָלְצָה בַּלַּיְלָה אוֹ שֶׁחָלְצָה בִּפְנֵי שְׁנַיִם אוֹ בִּפְנֵי שְׁלֹשָׁה וְנִמְצָא אֶחָד מֵהֶן קָרוֹב אוֹ פָּסוּל. אוֹ שֶׁהָיָה הַמִּנְעָל קָשׁוּר לְמַעְלָה מִן הָאַרְכֻּבָּה. אוֹ שֶׁהִתִּיר הוּא וְשָׁמְטָה הִיא אוֹ שֶׁהִתִּירָה הִיא וְשָׁמַט הוּא. אוֹ שֶׁנִּתְכַּוְּנָה הִיא וְלֹא נִתְכַּוֵּן הוּא. אוֹ שֶׁנִּתְכַּוֵּן הוּא וְלֹא נִתְכַּוְּנָה הִיא. וְכֵן קְטַנָּה שֶׁחָלְצָה לְגָדוֹל. חֲלִיצָתָן פְּסוּלָה. וְכֵן אִם חָלְצָה בִּפְנֵי יָחִיד וַאֲפִלּוּ בֵּינוֹ לְבֵינָהּ וּבַלַּיְלָה הֲרֵי זוֹ חֲלִיצָה פְּסוּלָה. אֲבָל חֵרֵשׁ שׁוֹטֶה וְקָטָן שֶׁחָלְצוּ וְכָל הַחוֹלֵץ לְמִי שֶׁהִיא פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם אֵינָהּ חֲלִיצָה:
16Chalitzah is unacceptable [in the following instances]:a) a woman performed chalitzah at night,44See Halachah 5.b) she performed chalitzah in the presence of two judges or in the presence of three judges, and one of them was a relative or [otherwise] disqualified [from serving in this capacity,45Since chalitzah is considered a judgment, three acceptable judges must preside over the ceremony.c) the shoe was tied above his knee,46Deuteronomy 25:9 states: "She shall remove his shoe from his foot." If the shoe is tied above the knee, it is not considered to have been removed from his foot.d) he untied the shoe and she removed it,47The entire act of removing the shoe must be performed by the woman. The Ramah (Even HaEzer 169:33) quotes Rabbenu Asher, who rules that if the man could walk wearing the shoe while it is untied, the chalitzah is acceptable even if the man untied the shoe and the woman removed it. or she untied the shoe and he removed it,e) she had the intent of performing [these acts to release herself from her obligation to her yavam] but he did not, or he had the intent of performing [these acts to release her from her obligation to her yavam] but she did not,48As stated in Halachah 8, the ceremony must be performed with this intent in mind.f) or a girl below the age of majority removed the shoe of an adult.49Since the girl is not past the age of majority, her deed is not totally effective. Nevertheless, since she can be be married at this age, her deed has a minimal effect, and she can no longer perform yibbum.Similarly, if a woman performs chalitzah in the presence of one judge, or even if chalitzah is performed at night by [the yevamah and the yavam] while they are alone, the chalitzah is unacceptable.50The Rambam's intent is that the chalitzah is unacceptable, but it at least has the effect of preventing the woman from performing yibbum in the future, as opposed to a chalitzah that is of no consequence, as explained in Halachah 26. When, however, chalitzah is performed by a deaf-mute, a mentally incapable person, or a minor,51These individuals are all considered mentally incompetent, and their deeds are not considered of consequence with regard to Torah law. As mentioned above, there are opinions that maintain that chalitzah performed by a deaf-mute is unacceptable, but not of no consequence whatsoever. and similarly, when a man performs chalitzah with a woman who is not obligated to perform chalitzah or yibbum,52E.g., a yevamah who is pregnant. the chalitzah is of no consequence.
י״זיָבָם שֶׁרַגְלוֹ הַיְמָנִית חֲתוּכָה אֵינוֹ חוֹלֵץ בִּשְׂמֹאל וְאִם חָלְצָה מֵעַל שְׂמֹאלוֹ חֲלִיצָתָהּ פְּסוּלָה. הָיְתָה רַגְלוֹ עֲקֻמָּה לְאָחוֹר אוֹ הֲפוּכָה עַל צִדָּהּ אוֹ שֶׁהָיָה מְהַלֵּךְ עַל רָאשֵׁי אֶצְבְּעוֹת רַגְלָיו הֲרֵי זֶה אֵינוֹ חוֹלֵץ שֶׁהַחוֹלֵץ צָרִיךְ לִנְעֹץ עֲקֵבוֹ בָּאָרֶץ וְזֶה אֵינוֹ יָכוֹל. וְאִם חָלְצָה לְמִי שֶׁרַגְלוֹ כָּךְ הֲרֵי חֲלִיצָתָהּ פְּסוּלָה:
17When a yavam's right leg is cut off, he should not perform chalitzah with his left leg.53The commentaries explain that the Rambam's opinion is that such a man should not perform chalitzah at all. Other commentaries maintain that if the stump of the yavam's leg can be placed in a shoe and that shoe tied beneath his knee, the chalitzah is acceptable. Although the Rambam accepts, after the fact, chalitzah performed when the straps of the shoe are tied below the yavam's knee, that is only because it is theoretically possible to have tied them on his foot. When it is impossible to tie the shoe on to his foot, as in the instance at hand, the chalitzah should not be performed (Maggid Mishneh).The Shulchan Aruch (Even HaEzer 169:35) mentions both opinions, but appears to favor the Rambam's view. The Beit Yosef states that according to the Rambam, such a chalitzah is of no consequence at all. The Beit Shmuel 169:33 states that since there are authorities who maintain that such a chalitzah is acceptable, the later authorities agree that a woman may not perform yibbum after such a chalitzah. If he performs chalitzah with his left leg, the chalitzah is unacceptable.If [the yavam] is bowlegged, his foot turns to his side, or he always walks on the tips of his toes, she should not perform chalitzah, for the man performing chalitzah must press his heel to the ground, and such a person is incapable of this. If a person with such a disability in his legs performs chalitzah, the chalitzah is unacceptable.54After the fact, if a yavam does not press his heel to the ground in an ordinary instance, the chalitzah is, nevertheless, acceptable. The distinction between an ordinary chalitzah and the case at hand is that ordinarily, it is possible for the yavam to press his heel to the ground, and therefore the fact that he does not actually do so is not significant. In this instance, the yavam is incapable of doing so. Hence, the chalitzah is unacceptable.Although the Ra'avad and others differ with the Rambam on this issue, the Shulchan Aruch (Even HaEzer 169:34) accepts the Rambam's view.
י״חוִיבָמָה שֶׁיָּדֶיהָ חֲתוּכוֹת חוֹלֶצֶת לְכַתְּחִלָּה וַאֲפִלּוּ בְּשִׁנֶּיהָ שֶׁלֹּא נֶאֱמַר וְחָלְצָה בְּיָדָהּ. חָלְצָה בְּמִנְעָל שֶׁל בֶּגֶד אֵינָהּ חֲלִיצָה. אֲבָל אִם חָלְצָה בְּמִנְעָל שֶׁאֵין לוֹ עָקֵב. אוֹ שֶׁהָיָה תָּפוּר בְּפִשְׁתָּן. אוֹ שֶׁהָיָה מִנְעָל שֶׁל שֵׂעָר אוֹ שֶׁל סִיב אוֹ שֶׁל שַׁעַם אוֹ שֶׁל עֵץ. אוֹ שֶׁהָיָה מִנְעָל גָּדוֹל שֶׁאֵינוֹ יָכוֹל לְהַלֵּךְ בּוֹ אוֹ קָטָן שֶׁאֵינוֹ חוֹפֶה אֶת רֹב רַגְלוֹ. אוֹ מִנְעָל פָּרוּם שֶׁאֵינוֹ חוֹפֶה רֹב הָרֶגֶל אוֹ נִפְחַת שֶׁאֵין מְקַבֵּל רֹב הָרֶגֶל. חֲלִיצָתָהּ פְּסוּלָה:
18A yevamah whose hands are cut off may perform chalitzah. A priori, [it is acceptable,] even if [she must remove the shoe] with her teeth, for the verse does not say that she will remove it with her hands.If she removes a shoe made from cloth, she has not performed chalitzah.55A cloth shoe does not protect the foot at all; therefore, it is not considered a shoe (Yevamot 103a). This ruling is also applied in other contexts - e.g., on Yom Kippur, when we are forbidden to wear shoes, it is permitted to wear a cloth shoe (Hilchot Sh'vitat Asor 3:7).The Rashba and others maintain that there is no difference between a cloth slipper and a shoe made from the other substances mentioned. This is the view quoted by the Shulchan Aruch (Even HaEzer 169:22). If, however, she removes a shoe that does not have a heel, [a shoe] that was sewn with linen threads, a shoe made from goats' hair, the inner bark of a palm tree, cork or wood, the chalitzah is unacceptable.56These substances offer some protection, and so the chalitzah is of some consequence. Nevertheless, when the Torah uses the word נעל, the intent is always a leather shoe.[This same ruling applies if] the shoe is so large that [the yavam] could not walk in it, if it is so small that it does not cover the majority of his foot, it is torn to the extent that it does not cover the majority of his foot, or the sole is opened to the extent that it does not cover the majority of his foot.
י״טחָלְצָה בְּסַנְדָּל שֶׁל עֵץ וּמְחֻפֶּה עוֹר אוֹ הָיְתָה קַרְקָעִיתוֹ עוֹר וּלְחָיָיו שֶׁל שֵׂעָר. אוֹ שֶׁחָלְצָה סַנְדָּל שֶׁל שְׂמֹאל מֵעַל רַגְלוֹ הַיְמָנִית. אוֹ שֶׁלֹּא הָיָה הַמִּנְעָל שֶׁלּוֹ אוֹ (שֶׁלֹּא) הָיָה גָּדוֹל שֶׁיָּכוֹל לְהַלֵּךְ בּוֹ. אוֹ קָטָן שֶׁחוֹפֶה אֶת רֹב רַגְלוֹ אוֹ נִפְרַם שֶׁחוֹפֶה אֶת רֹב הָרֶגֶל אוֹ נִפְחַת שֶׁמְּקַבֵּל רֹב הָרֶגֶל. חֲלִיצָתוֹ כְּשֵׁרָה:
19Chalitzah is acceptable,57This applies after the fact. A priori, none of these situations is acceptable. however, in the following instances:a) a sandal was made of wood58The same rules apply with regard to a shoe made from any of the other substances mentioned in the previous halachah and covered with leather (Maggid Mishneh). and covered with leather, or its soles were leather, and its sides were made from goats' hair,b) [the yevamah] removed a left shoe from [the yavam's] right foot,c) the shoe did not belong to the [the yavam],59In the present age, when the Rabbinic court owns a special chalitzah shoe, it is customary to give it to the yavam as a present before the ceremony.d) it was oversized, but he could still walk while wearing it,e) it was small, but it covered the majority of his foot,f) it was torn, but it covered the majority of his foot, org) the sole was opened, but it covered the majority of his foot.
כ׳סַנְדָּל הַמֻּסְגָּר וְהַמֻּחְלָט וְשֶׁל עַכּוּ״ם שֶׁמַּנִּיחִין אוֹתוֹ בְּרַגְלֵי הַצּוּרָה לֹא תַּחֲלֹץ בּוֹ. וְאִם חָלְצָה חֲלִיצָתָהּ כְּשֵׁרָה. וְאַף עַל פִּי שֶׁהוּא אָסוּר בַּהֲנָאָה. אֲבָל סַנְדָּל שֶׁל תִּקְרֹבֶת עַכּוּ״ם וְשֶׁל עִיר הַנִּדַּחַת. אוֹ שֶׁנַּעֲשָׂה לְמֵת שֶׁיִּקָבֵר בּוֹ. אִם חָלְצָה בּוֹ חֲלִיצָתָהּ פְּסוּלָה שֶׁהֲרֵי אֵינוֹ עוֹמֵד לְהַלֵּךְ בּוֹ:
20When it is questionable that a sandal is affected by tzara'at, or it has definitely been established that this is the case,60See Hilchot Tum'at Tzara'at, Chapter 12, which describes the process in which a garment or shoe affected by tzara'at is judged by a priest. There are two stages to this process: one in which the article is "quarantined" for a period of a week to determine whether it has actually been affected, and a second stage during which the priest declares that the article is affected and must be burned. and a sandal belonging to a false deity - i.e., one placed on the feet of an image61Rashi (Yevamot 103b) interprets this as a leather covering placed on the feet of an idol to prevent damage when it is transported from place to place. Thus, the sandal is placed in the category of "an accessory to a false deity." - should not be used for chalitzah.62For it is abhorrent to use an article associated with impurity or false deities for the purpose of a mitzvah (Yevamot 103b). If, however, it is used for that purpose, the chalitzah is acceptable, despite the fact that deriving benefit from [the sandal] is forbidden.63The rationale is that the performance of mitzvot is not considered to be a personal benefit (ibid.).[Different rules apply with regard to a sandal that was made from an animal] offered to a false deity,64Our translation is based on the gloss of the Maggid Mishneh. The Maggid Mishneh continues, stating that if a sandal itself is offered to a false deity, it does not become forbidden. See Beit Shmuel 169:23.The difference between this and the previous instance can be explained as follows: It is possible to nullify the connection between "an accessory to a false deity" and the worship of the false deity. (See Hilchot Avodat Kochavim 8:8-9.) As such, there is a possibility that such a sandal will not have to be destroyed. An object offered to a false deity, including the hide from which a sandal was made, can never be separated from its association with the false deity (ibid.). As such, it is condemned to be destroyed, forbidden for eternity and considered as if it did not exist. Hence, it is not considered as if the yevamah removed a significant entity from the yavam's foot. one from an apostate city,65See Hilchot Avodat Kochavim, Chapter 4, which describes the laws governing such a city. All the property in the city is condemned to be burned, and thus it cannot be used for chalitzah, for the reasons described above. or one that was made to be worn by a corpse when it is buried. If [such a sandal] is used for chalitzah, the chalitzah is unacceptable. [The rationale is] that such a sandal was not made for a person to wear while walking.
כ״אקָרְעָה הַמִּנְעָל מֵעַל רַגְלוֹ אוֹ שֶׁשְּׂרָפַתּוּ אוֹ שֶׁהָיָה לָבוּשׁ שְׁתֵּי מִנְעָלִין וְחָלְצָה הָעֶלְיוֹן אַף עַל פִּי שֶׁקָּרְעָה הַתַּחְתּוֹן עַד שֶׁנִּתְגַּלְּתָה רַגְלוֹ הֲרֵי זוֹ חֲלִיצָה פְּסוּלָה:
21If [the yevamah] tears the shoe off [the yavam's] foot or burns it, the chalitzah is unacceptable.66Yevamot 102a questions whether the Torah's intent is that the yevamah must bare the yavam's foot, in which instance these examples would be acceptable, or she must remove his shoe in the ordinary manner, in which instance they would not be acceptable. Since the question remains unresolved, the Rambam rules stringently. [The same ruling applies if the yavam] is wearing two shoes [on his right foot, one on top of the other,] and the yevamah removes [only] the upper one [in the ordinary manner]. Even if she tears off the lower one so that his foot is revealed, the chalitzah is unacceptable.
כ״ביְבָמָה שֶׁאָכְלָה שׁוּם אוֹ גַּרְגִּיר וְכַיּוֹצֵא בָּהֶן מִדְּבָרִים שֶׁמַּרְבִּין אֶת הָרֹק וְהָיָה הָרֹק זָב מִפִּיהָ אֵינוֹ כְּלוּם עַד שֶׁיִּהְיֶה הָרֹק מֵעַצְמוֹ:
22When a yevamah eats garlic, mustard,67Our translation is based on the Aruch. It is possible that it is not precise according to the Rambam's view. The intent, however, is definitely a sharp pungent herb. or other similar condiments that increase a person's spittle, and spittle was dripping from her mouth, [the spitting] is of no consequence.68The intent is that she must spit again in order for the chalitzah to be performed as required. Even if she does not spit at all, the chalitzah is acceptable after the fact, as stated in Halachah 12 (Maggid Mishneh). [Instead,] the spittle must be produced without any external cause.
כ״גרָקְקָה דָּם אוֹ שֶׁהָיָה שׁוֹתֵת מִפִּיהָ אֵינוֹ כְּלוּם. וְאִם מָצְצָה וְרָקְקָה כָּשֵׁר שֶׁאִי אֶפְשָׁר לְדָם שֶׁנִּמְצָץ בְּלֹא צִחְצוּחֵי רֹק. רָקְקָה וּקְלָטַתּוּ הָרוּחַ קֹדֶם שֶׁיַּגִּיעַ לִכְנֶגֶד פָּנָיו כְּגוֹן שֶׁהָיְתָה אֲרֻכָּה וְהוּא קָצָר אֵינוֹ כְּלוּם. וְאִם אַחַר שֶׁהִגִּיעַ לְנֶגֶד פָּנָיו אַף עַל פִּי שֶׁלֹּא הִגִּיעַ לָאָרֶץ כָּשֵׁר. וְכֵן אִם לֹא רָאוּ הַדַּיָּנִין הָרֹק כְּשֶׁיָּצָא מִפִּיהָ כָּשֵׁר:
23If [a yevamah] spits blood,69Rabbenu Asher differs and maintains that a yevamah who spits blood need not spit again, even if she does not suck her wound. His view is accepted by the Shulchan Aruch (Even HaEzer 169:40). or if blood is dripping from her mouth, [the spitting] is of no consequence. If she sucks [the wound] and then spits, it is acceptable, for it is impossible that there will be blood that was sucked out without some drops of spittle.70The fact that spittle is mixed with blood or another substance does not disqualify it.If she spits, and the wind blows away the spittle before it passed before his face - e.g., she is tall and he is short - [the spitting] is of no consequence. If [the wind blows] the spittle [away] after it passes before his face, but before it lands on the ground, it is acceptable.71The intent is that the spittle must pass in front of or below the yavam's face. If the yevamah was taller than the yavam and the wind moved her spittle away before it passed before his face, the spitting is not acceptable.If the judges do not see the spittle emerge from [the yevamah's] mouth,72Although a priori the judges must see the spittle, as stated in Halachah 7, after the fact their failure to do so does not render the spitting unacceptable.In Yevamot 106b, a phrase "before the eyes of the elders" (Deuteronomy 25:9 is cited as a support for this requirement. Nevertheless, the Rabbis explain that the requirement is Rabbinic and not Scriptural in origin, and the verse is merely an asmachta. See the Beit Shmuel 169:39. it is acceptable.
כ״דחֲלִיצָה מֻטְעֵית פְּסוּלָה. כֵּיצַד. כְּגוֹן שֶׁאָמְרוּ לוֹ חֲלֹץ לָהּ וּבְכָךְ אַתָּה כּוֹנְסָהּ. אוֹ שֶׁאָמְרוּ לוֹ חֲלֹץ לָהּ שֶׁזּוֹ מִצְוָה הִיא וְאֵינָהּ מַפְסֶדֶת עָלֶיךָ כְּלוּם וְאִם תִּרְצֶה אַחַר כָּךְ לְיַבֵּם תְּיַבֵּם וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ פְּסוּלָה. אֲבָל אִם הִטְעוּהוּ וְאָמְרוּ לוֹ חֲלֹץ לָהּ עַל מְנָת שֶׁתִּתֵּן לְךָ מָאתַיִם זוּז אוֹ עַל תְּנַאי כָּךְ וְכָךְ אַף עַל פִּי שֶׁלֹּא נָתְנָה וְלֹא נִתְקַיֵּם הַתְּנַאי חֲלִיצָתָהּ כְּשֵׁרָה שֶׁהֲרֵי נִתְכַּוֵּן לַחֲלֹץ לָהּ:
24Chalitzah performed under mistaken premises is unacceptable.What is implied? For example, [if the yavam] was told: "Perform chalitzah for her; this is the manner in which you acquire her as a wife," "Perform chalitzah for her. It is a mitzvah, and you do not lose any rights. If you later desire to perform yibbum, you may,"73Note the Maggid Mishneh, which mentions that there is a dispute among the Rabbis about this issue. The rationale for the position that the chalitzah is acceptable is that in this instance, the yavam did intend to free the yevamah from her obligation to him. (See also Shulchan Aruch, Even HaEzer 169:52.) or the like, [the chalitzah] is unacceptable.74For as mentioned in Halachah 8, the chalitzah must be performed with the intent of releasing the woman from her obligation.The chalitzah is, however, effective, in that it prevents the man (or his brothers) from ever performing yibbum with this woman. Therefore, the man is compelled by the court to perform an acceptable chalitzah, for from this point on he has nothing to lose, and through his act he can enable the woman to remarry (Rashba, as quoted by Maggid Mishneh; Shulchan Aruch, loc. cit. 169:51).If, however, he was deceived and was told: "Perform chalitzah for her on the condition the she give you 200 zuz" - or "...under any other condition" - the chalitzah is acceptable,75This applies even if the condition is stated in a manner that meets the requirements of conditional statements (Shulchan Aruch, loc. cit.:50). even though she did not give [him the money] or fulfill the condition.76If such a condition is made, the woman is, however, rightfully obligated to pay the amount she agreed to pay, unless she has a reason for which she considers the yavam as unfit to marry her that the court would accept [Shulchan Aruch (ibid.)]. [The rationale is that] he had the intent [of releasing her from her obligation] when he performed chalitzah.
כ״ההַמּוֹסֵר מוֹדָעָא עַל הַחֲלִיצָה חֲלִיצָתוֹ פְּסוּלָה. לְפִיכָךְ רָאוּי לַדַּיָּנִין לוֹמַר לוֹ לְבַטֵּל הַמּוֹדָעָא כְּדֶרֶךְ שֶׁעוֹשִׂין בְּגֵט. לְחָצוּהוּ יִשְׂרְאֵלִים וְהִכּוּהוּ עַד שֶׁחָלַץ אִם כַּדִּין עָשׂוּ חֲלִיצָתוֹ כְּשֵׁרָה. וְאִם שֶׁלֹּא כַּדִּין עָשׂוּ כְּגוֹן שֶׁהָיוּ הֶדְיוֹטוֹת אוֹ שֶׁטָּעוּ חֲלִיצָתוֹ פְּסוּלָה. וְאִם הָעַכּוּ״ם אֲנָסוּהוּ מֵעַצְמָן. אִם הָיָה הַדִּין נוֹתֵן שֶׁיַּחֲלֹץ חֲלִיצָתוֹ פְּסוּלָה. וְאִם שֶׁלֹּא כַּדִּין אֵינָהּ חֲלִיצָה:
25When [a man] issues a protest77Based on Hilchot Gerushin 6:19, it would appear that the intent is that he tells two witnesses that he does not want to perform the chalitzah, the chalitzah should be nullified, because he is being compelled to perform it. with regard to chalitzah, the chalitzah is not acceptable.78Yevamot 106a establishes an equivalence between divorce and chalitzah with regard to these laws. On this basis, the Rivash (Responsum 482, quoted by the Kessef Mishneh in the gloss on Halachah 16) raises a difficulty, noting that when a husband issues a protest regarding a get, the get is nullified entirely. With regard to chalitzah, however, the Rambam rules that it is merely unacceptable.The Rivash offers a resolution, explaining that when a protest is issued with regard to a get, the get itself becomes nullified, and therefore the divorce is of no consequence at all. With regard to chalitzah, however, the yavam did perform all the required acts. His protest is accepted to the extent that it is considered that he performed these acts without intending to release the woman from her obligation. This, however, merely causes a chalitzah to be unacceptable, as stated in Halachah 16. It does not nullify it entirely. Therefore, it is proper for the judges to tell [the yavam] to nullify all protests [before he performs chalitzah], as they do with regard to a get.79See Hilchot Gerushin 6:20.[The following rules apply when] Jews compel [a yavam] and beat him until he performs chalitzah:80The equivalence established by Yevamot 106a applies in this context as well. The Rambam discusses the laws governing a get given under compulsion in Hilchot Gerushin 2:20. If they act according to law,81This refers to a situation analogous to those described in Chapter 2, Halachah 14, or Chapter 6, Halachah 4, in which the person should be compelled to perform chalitzah.The Ramah (Even HaEzer 169:13) states that even according to the Ashkenazic authorities who maintain that the mitzvah of chalitzah takes precedence, a yavam may be compelled to perform chalitzah only for these reasons. the chalitzah is acceptable.82For, as stated in Hilchot Gerushin, the person's actions are considered to be performed voluntarily, because:He wants to be part of the Jewish people, and he wants to perform all the mitzvot and eschew all the transgressions; it is only his evil inclination that presses him. Therefore, when he is beaten until his [evil] inclination has been weakened, and he consents, he is considered to have [acted] willfully. If they do not act according to law - e.g., they were commoners or they erred [in judgment] - the chalitzah is not acceptable.If gentiles force [a yavam to perform chalitzah] on their own initiative,83I.e., as opposed to acting as agents for a Jewish court. but the law would require that chalitzah be performed, the chalitzah is unacceptable. If they do not act according to law, the chalitzah is of no substance.
כ״וכָּל מָקוֹם שֶׁאָמַרְנוּ אֵינָהּ חֲלִיצָה אוֹ לֹא עָשָׂה כְּלוּם אוֹ אֵינָהּ כְּלוּם הֲרֵי הִיא כְּאִלּוּ לֹא נֶחְלְצָה לוֹ וְלֹא נֶאֶסְרוּ עָלָיו קְרוֹבוֹתֶיהָ וְלֹא נִפְסְלָה מִן הַכְּהֻנָּה וּמֻתֶּרֶת לְהִתְיַבֵּם. וְכָל מָקוֹם שֶׁאָמַרְנוּ חֲלִיצָתָהּ פְּסוּלָה נֶאֶסְרוּ עָלָיו קְרוֹבוֹתֶיהָ וְנִפְסְלָה מִן הַכְּהֻנָּה וְנֶאֶסְרָה עַל הָאַחִין וְאֵינָהּ מִתְיַבֶּמֶת וְאֵינָהּ מֻתֶּרֶת לְהִנָּשֵׂא לְזָר עַד שֶׁתַּחֲלֹץ חֲלִיצָה כְּשֵׁרָה:
26Whenever we have used the terms, "the chalitzah is of no substance," "his actions are of no consequence," or "nothing has been accomplished," the intent is that it is as if the chalitzah had not been performed at all. He does not become forbidden to her relatives,84See Chapter 1, Halachah 13. nor is she forbidden to the priesthood, and she is permitted to perform yibbum.Whenever we have used the term, "the chalitzah is unacceptable,"85As mentioned above, there is a difference of opinion among the Rabbis if the Rambam's intent is that these acts of chalitzah are acceptable according to Scriptural law or not. he becomes forbidden to her relatives, and she becomes forbidden to the priesthood. She also becomes forbidden to all the brothers, and she may not perform yibbum. She may not marry another man, however, until she performs an acceptable chalitzah.
כ״זעָבְרָה וְנִשֵּׂאת הֲרֵי זֶה חוֹלֵץ לָהּ חֲלִיצָה כְּשֵׁרָה וְהִיא תַּחַת בַּעְלָהּ וְאֵין מוֹצִיאִין אוֹתָהּ מִיָּדוֹ:
27If she transgresses and marries [another man], [the yavam] should perform an acceptable chalitzah with her. She is allowed to remain married to her husband; she is not sent away from him.86The Maggid Mishneh states that the woman should, however, be forced to separate from her second husband until she performs an acceptable chalitzah. The Shulchan Aruch (Even HaEzer 169:55) follows this ruling.
כ״חיְבָמָה שֶׁגָּדְלָה בֵּין הָאַחִין הֲרֵי זוֹ מֻתֶּרֶת לְהִתְיַבֵּם וְאֵין חוֹשְׁשִׁין לָהּ שֶׁמָּא חָלְצָה לְאֶחָד מֵהֶן בֵּינוֹ לְבֵינָהּ וְנִפְסְלָה עֲלֵיהֶן. אֲבָל אִם רְאִינוּהָ שֶׁחָלְצָה נַעֲלוֹ שֶׁל אֶחָד מֵהֶן נִפְסְלָה שֶׁמָּא נִתְכַּוְּנָה לַחֲלִיצָה וּצְרִיכָה חֲלִיצָה כְּשֵׁרָה לְהַתִּירָהּ לְזָר:
28When a yevamah grows up together with [her deceased husband's] brothers, she is permitted to perform yibbum. We do not suspect that she performed chalitzah with one of them alone and thus became forbidden to them.87As stated in Halachah 16.If, however, we see that she removed the shoe of one [of the brothers], she is disqualified [from yibbum], lest she have intended to perform chalitzah.88The Kessef Mishneh states that the Rambam's ruling alludes to the following law: If neither the yevamah nor the yavam has the intent to perform chalitzah, the fact that she removes his shoe is of no consequence, and she is permitted to perform yibbum. Note the discussion of this subject in Sefer HaKovetz. An acceptable chalitzah must, however, be performed to enable her to marry another man.
כ״טגֵּט חֲלִיצָה שֶׁאָנוּ כּוֹתְבִין לָהּ אֵינוֹ אֶלָּא מַעֲשֵׂה בֵּית דִּין כְּדֵי שֶׁיִּהְיֶה בְּיָדָהּ רְאָיָה שֶׁנֶּחְלְצָה וְאֵין הַדַּיָּנִין חוֹלְצִין אֶלָּא אִם כֵּן מַכִּירִין. לְפִיכָךְ מִי שֶׁרָאָה זֹאת שֶׁנֶּחְלְצָה כּוֹתְבִין לָהּ גֵּט חֲלִיצָה אַף עַל פִּי שֶׁאֵינָן מַכִּירִין שֶׁזּוֹ הִיא בַּת פְּלוֹנִי וְאֵשֶׁת פְּלוֹנִי וְשֶׁזֶּה שֶׁחָלַץ לָהּ אָחִיו הוּא. שֶׁהֲרֵי הַדַּיָּנִין שֶׁחָלְצָה בִּפְנֵיהֶם הִכִּירוּ זֶה וְאַחַר כָּךְ חָלְצָה:
29The document recording the chalitzah that we compose is merely a legal record,89This distinguishes it from a bill of divorce (a get), which is actually necessary to effect the divorce. For that reason (as implied by Hilchot Gerushin 11:9), it need not be written for the sake of the man and the woman, nor is it bound by the other details that apply to a get.Note, however, the Shulchan Aruch (Even HaEzer 169:56), which states that the paper on which the document is written must be ruled with a stylus (i.e., sirtut is required), because it contains Biblical verses. so that a woman will have at hand proof that she performed chalitzah.Judges do not preside over chalitzah unless they know the identity [of the yevamah and the yavam]. Therefore, a person who observes chalitzah can write a document recording the chalitzah although he does not know90The Rambam is emphasizing that we do not suspect that perhaps the court erred and presided over a chalitzah without knowing the identity of the parties involved. that the woman is so and so's daughter, that her deceased husband was so and so, and that the person who performed chalitzah with her was [her husband's] brother. [He can assume] that the judges who presided over the chalitzah clarified these matters and afterwards had the chalitzah performed.
ל׳וזהו נוסח גט חליצה שנהגו בו העם: בְּיוֹם פְּלוֹנִי כָּךְ וְכָךְ לְיֶרַח פְּלוֹנִי שְׁנַת כָּךְ וְכָךְ לִבְרִיאַת עָלְמָא לְמִנְיָנָא דְּרָגִילְנָא לְמִימְנֵי בָּהּ בְּמָקוֹם פְּלוֹנִי אֲנַחְנָא דַּיָּנֵי דְּמִקְצָתְנָא חֲתִימִין לְתַתָּא בְּמוֹתַב תְּלָתָא כַּחֲדָא הֲוֵינָא יָתְבִין בְּבֵי דִּינָא וּסְלִיקָא לָקֳדָמָנָא פְּלוֹנִית בָּרַת פְּלוֹנִי אַרְמְלָתָא דִּפְלוֹנִי. וְקָרְבַת לָקֳדָמָנָא גְּבַר חַד דִּשְׁמֵיהּ פְּלוֹנִי בַּר פְּלוֹנִי. וְכֵן אָמְרָה לָנָא פְּלוֹנִית דָּא. פְּלוֹנִי בַּר פְּלוֹנִי דְּנָא אֲחוּהָ דִּפְלוֹנִי בַּעְלִי מֵאֲבוּהָּ הֲוָה דַּהֲוֵינָא נְסִיבָא לֵיהּ וְשָׁכִיב וְחַיֵּי לְרַבָּנָן וּלְכָל יִשְׂרָאֵל שָׁבַק. וּבַר וּבָרַת יָרִית וּמַחְסִין וּמוֹקִים שְׁמָא בְּיִשְׂרָאֵל לֹא שָׁבַק. וְהָדֵין פְּלוֹנִי אֲחוֹהִי חָזִי לְיִבּוּמִי יָתִי. כְּעַן רַבָּנָן אָמְרוּ לֵיהּ אִי צָבִי לְיִבּוּמִי יָתִי יְיַבֵּם וְאִי לֹא יִטְלַע לִי רַגְלֵיהּ דִּימִינָא קָדֳמֵיכוֹן וְאַשְׁרֵי סֵינֵיהּ מֵעַל רַגְלֵיהּ וְאֵרֹק בְּאַנְפּוֹהִי. וְאִשְׁתְּמוֹדַעְנוּהוּ לִפְלוֹנִי דְּנָא דַּאֲחוֹהִי דִּפְלוֹנִי מִיתְנָא מֵאֲבוּהִי הוּא וַאֲמַרְנָא לֵיהּ אִי צָבִית לְיִבּוּמֵי יָתָהּ יַבֵּם וְאִי לֹא אַטְלַע לָהּ קָדֳמָנָא רַגְלָךְ דִּימִינָא וְתִשְׁרֵי סֵינָךְ מֵעַל רַגְלָךְ וְתָרֹק בְּאַנְפָּךְ. וְעָנִי וְאָמַר לָנָא לֵית אֲנָא צָבִי לְיִבּוּמֵי יָתָהּ. מִיַּד אַקְרִינוּהָ לִפְלוֹנִית דָּא מֵאֵן יְבָמִי לְהָקִים לְאָחִיו שֵׁם בְּיִשְׂרָאֵל לֹא אָבָה יַבְּמִי. וְאַף לְהַאי פְּלוֹנִי אַקְרִינוּהוּ לֵיהּ לֹא חָפַצְתִּי לְקַחְתָּהּ. וְאַטְלַע לָהּ רַגְלֵיהּ דִּימִינָא וְשָׁרַת סֵינֵיהּ מֵעַל רַגְלֵיהּ וְרָקַת בְּאַנְפּוֹהִי רֹקָא דְּאִיתְחֲזִי לָנָא מִפּוּמָהּ עַל אַרְעָא. וְתוּב אַקְרִינוּהָ לִפְלוֹנִית דָּא כָּכָה יֵעָשֶׂה לָאִישׁ אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו וְנִקְרָא שְׁמוֹ בְּיִשְׂרָאֵל בֵּית חֲלוּץ הַנָּעַל. וַאֲנַחְנָא דַּיָּנֵי וְכָל דְּהַוּוּ יָתְבִין קָדֳמָנָא עֲנֵינָן בַּתְרֵיהּ חֲלוּץ הַנָּעַל חֲלוּץ הַנָּעַל חֲלוּץ הַנָּעַל תְּלַת זִמְנִין. וּמִדְּאִיתְעֲבִיד עֻבְדָּא דָּא קָדֳמָנָא שָׁרִינוּהָ לִפְלוֹנִית דָּא לִמְהָךְ לְהִתְנַסְבָּא לְכָל מַאן דְּתִצְבֵּי וְאִינַשׁ לֹא יִמְחֶה בְּיֳדָהּ מִן יוֹמָא דְּנָן וּלְעָלַם. וּבָעִית מִנָּנָא פְּלוֹנִית דָּא גִּטָּא דַּחֲלִיצוּתָא דָּא וּכְתַבְנָא וַחֲתַמְנָא וִיהַבְנָא לָהּ לִזְכוּ כְּדַת משֶׁה וְיִשְׂרָאֵל. פְּלוֹנִי בַּר פְּלוֹנִי עֵד. פְּלוֹנִי בַּר פְּלוֹנִי עֵד:
30This is the formal text of the document recording the chalitzah that is employed at present:On this day of the week and on this day of the month, in this year from the time of creation, according to the reckoning that is followed in this and this place, we, the judges, of whom several have signed below,91For as stated in Halachah 5, at the outset five judges are necessary. Nevertheless, it is the presence of three that is considered significant. sat in a session of three in court. So and so, the widow of so and so, the daughter of so and so, approached us, as did a man named so and so, the son of so and so.And this woman told us: "So and so, the son of so and so, [is] the paternal brother of so and so, my husband. [My husband,] to whom I was married, died, leaving life to the Sages and to the entire Jewish people. He did not leave a son or a daughter to inherit him and to perpetuate his name within Israel. So and so, his brother is fit to perform yibbum with me."Rabbis, tell that man: 'If you desire to perform yibbum, do so.' If not, let him place his right foot before me, and I will remove his shoe from his foot and spit before him."We clarified the identity of so and so and that he is the paternal brother of so and so, and we told him: "If you desire to perform yibbum, do so. If not, place your right foot before us, so that she can remove your shoe from your foot and spit before you." He answered us: "I do not desire to perform yibbum."Immediately, we had this woman recite after us:92Using the Hebrew words of the verse. "My yavam refuses to raise a name for his brother within Israel. My yavam does not desire [to perform yibbum]."And then, we had the man recite after us:93Using the Hebrew words of the verse. "I do not desire to take her." He then placed his right foot forward. She removed his shoe from his foot and spit before him, emitting spittle that could be seen by us from her mouth to the ground.We then had her recite after us:94Using the Hebrew words of the verse. "This is what should be done to a man who does not build his brother's household. And his [family] shall be called within Israel 'the household of the one whose shoe was removed.' And we the judges, and all those sitting before us, answered after her: "the one whose shoe was removed," "the one whose shoe was removed," "the one whose shoe was removed," three times.When this act was performed before us, we granted license for so and so to marry whomever she desires; no man has the right to raise a protest from this day onward.So and so made a request for a legal record of this chalitzah. [Hence,] we wrote it up, signed it and gave to her as proof according to the faith of Moses and Israel.Signed so and so the son of so and so, a witness;so and so the son of so and so, a witness.95We have included these lines based on the standard printed texts of the Mishneh Torah, although it is highly likely that they are a printer's addition. They are not found in most early manuscripts and printings. Moreover, it is likely that they are a later printer's addition because the Rambam does not mention witnesses signing this document, but rather only the judges who presided over the chalitzah.
ל״אוּמְעִידִין עָלָיו שְׁלֹשָׁה אוֹ שְׁנַיִם מִן הַשְּׁלֹשָׁה אוֹ שְׁנַיִם שֶׁרָאוּ הַחֲלִיצָה אַף עַל פִּי שֶׁאֵינָן הַדַּיָּנִין שֶׁחָלְצָה בִּפְנֵיהֶן כְּמוֹ שֶׁבֵּאַרְנוּ. וַאֲפִלּוּ אִשָּׁה אוֹ עֶבֶד אוֹ קָטָן שֶׁהוּא מַכִּיר וְנָבוֹן נֶאֱמָנִין לוֹמַר זֶה פְּלוֹנִי אָחִי פְּלוֹנִי וְזוֹ הִיא יְבִמְתּוֹ וְחוֹלְצִין עַל פִּיהֶן. מַה שֶּׁאֵין כֵּן בִּשְׁאָר עֵדֻיּוֹת שֶׁל תּוֹרָה בֵּין לְעֵדוּת מָמוֹן בֵּין לְעֵדוּת אִסּוּר. שֶׁזֶּה דָּבָר הֶעָשׂוּי לְהִגָּלוֹת הוּא אֶפְשָׁר לֵידַע אֲמִתַּת הַדָּבָר שֶׁלֹּא מִפִּיהֶן כָּעִנְיָן שֶׁבֵּאַרְנוּ בְּסוֹף הִלְכוֹת גֵּרוּשִׁין. וְאִם רָצָה הַיָּבָם לְיַבֵּם מְקַדֵּשׁ וּמְיַבֵּם וְכוֹתֵב לָהּ כְּתֻבָּה כְּמוֹ שֶׁהוֹדַעְנוּ:
31The three judges, two of the three judges, or two other individuals who witnessed the chalitzah, but who did not serve as the judges presiding over the chalitzah, may testify concerning the matter, as we have explained.96See Halachah 29.Even [the testimony of] a woman, a servant or a minor who is perceptive and understanding is accepted if they say that "This is so and so, the brother of so and so, and this is his yevamah." We may then perform chalitzah on this basis. This does not apply with regard to other forms of testimony required by the Torah - neither testimony required in questions of monetary law nor testimony required with regard to prohibitions.[The rationale for this distinction is that this is a matter that will likely be revealed, and it is possible to know the truth of the matter without relying on their testimony, as we have explained at the conclusion of Hilchot Gittin.97The Rambam concludes Hilchot Gerushin by stating:Do not wonder at the fact that our Sages released the prohibition [against a married woman], which is considered a very severe matter, on the basis of the testimony of a woman, a servant or a maid servant, statements made by a gentile in the course of conversation, a written statement, or [testimony] that was not investigated by the ordinary process of interrogation, as we have explained.[These leniencies were instituted] because the Torah required the testimony of two witnesses, and all the other details of the laws of witnesses only with regard to matters that cannot be verified definitively except via witnesses and their testimony - e.g., that one person killed another, or that one person lent money to another. When, by contrast, the matter can be verified definitively without the testimony of a witness, and the witness cannot justify [his statements] if they are not true - e.g., when one testifies that a person died, the Torah did not necessitate [that the requirements of formal testimony be met in these instances]. For it is unlikely that a witness will testify falsely.As interpreted by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33), the Rambam's statement implies that since the matter will ultimately become public knowledge, no formal testimony is required, and the statements of an individual who witnessed the matter himself are sufficient to be accepted.If the yavam desires to perform yibbum, he should consecrate her, perform yibbum and write her a ketubah, as we have explained.98See Chapter 2, Halachah 2; Hilchot Ishut 22:14.
ל״בוזהו נוסח כתובת יבמין שנהגו העם: בְּיוֹם פְּלוֹנִי כָּךְ וְכָךְ לְיֶרַח פְּלוֹנִי שְׁנַת כָּךְ וְכָךְ לְמִנְיַן פְּלוֹנִי לְמִנְיָנָא דְּרָגִילְנָא לְמִימְנֵי בְּמָקוֹם פְּלוֹנִי אֵיךְ פְּלוֹנִי בֶּן פְּלוֹנִי אָתָא לָקֳדָמָנָא וְכֵן אָמַר לָנָא. אָחִי דְּמִן אַבָּא שָׁכִיב וְחַיֵּי לְרַבָּנָן וּלְכָל יִשְׂרָאֵל שָׁבַק. וּבַר וּבָרַת יָרִית וּמַחְסִין וּמוֹקִים שְׁמָא בְּיִשְׂרָאֵל לֹא שָׁבַק. וְשָׁבַק הַהִיא אִתְּתָא דִּשְׁמָהּ פְּלוֹנִית בַּת פְּלוֹנִי וְחָזִי לִי מִן אוֹרַיְתָא לְיִבּוּמֵי יָתָהּ כְּדִכְתִיב בְּסֵפֶר אוֹרַיְתָא דְּמשֶׁה יְבָמָהּ יָבֹא עָלֶיהָ. וּצְבִיאַת פְּלוֹנִית דָּא וְאִתְיַבְּמַת לִפְלוֹנִי בַּר פְּלוֹנִי יְבָמָהּ לְאוֹקוּמֵי שְׁמָא בְּיִשְׂרָאֵל כְּדִכְתִיב וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד יָקוּם עַל שֵׁם אָחִיו הַמֵּת וְגוֹ'. וְכָתַב לָהּ פְּלוֹנִי יְבָמָהּ לִפְלוֹנִית יְבִמְתֵּיהּ כֶּסֶף זוּזֵי מָאתָן דְּחָזוּ לָהּ דַּהֲווּ כְּתִיבִין בִּכְתֻבָּתָהּ דְּכָתַב לָהּ בַּעְלָהּ קַדְמָאָה וְאוֹסִיף לָהּ מִדִּילֵיהּ כָּךְ וְכָךְ וְדָא נְדוּנְיָא דְּהַנְעָלַת לֵיהּ וְכוּ' כִּשְׁאָר טָפְסֵי כְּתֻבּוֹת:
32On this day of the week and on this day of the month, in this year according to the reckoning that is followed in this and this place, [we the undersigned testify] that so and so, the son of so and so, appeared before us and told us: "My paternal brother died, leaving life to the Sages and to all of Israel. He did not leave a son or a daughter to inherit him and to perpetuate his name within Israel. He did, however, leave a woman so and so, the daughter of so and so. According to the Torah, she is fit to perform yibbum with me, as it is written in the Torah scroll of Moses: 'A yavam will engage in relations with her.' This woman consented and performed yibbum with so and so, the son of so and so, her yavam, to perpetuate [her deceased husband's] name within Israel, as it is written: "The first-born that she bears will arise in the name of his brother who is deceased."99It appears in this context that the Rambam is referring to the literal meaning of the verse and not the halachic meaning, as stated in Chapter 2, Halachah 6.So and so, the yavam, has written [a marriage contract for] two hundred silver zuzim, as befits her, as was written in the marriage contract written to her by her first husband,100This refers to an instance where the woman was a virgin when she married her first husband. Since she did not collect her due from her first husband, she is still entitled to a marriage contract of two hundred zuz. Otherwise, she would be granted only one hundred zuz, as is granted to other widows. and he adds to this pledge from his own resources this and this amount. This is the dowry with which she entered the household... [continuing as in] the ordinary text of a ketubah.
ל״גטופס הכתובה: בְּיוֹם פְּלוֹנִי כוּ'. אֵיךְ פְּלוֹנִי בֶּן פְּלוֹנִי אָמַר לִפְלוֹנִית בַּת פְּלוֹנִי בְּתֻלְתָּא כַּלָּתָא הֱוִי לִי לְאִנְתּוּ כְּדַת משֶׁה וְיִשְׂרָאֵל וַאֲנָא בְּמֵימַר דִּשְׁמַיָּא אֶפְלַח וְאוֹקִיר וַאֲסוֹבַר וְאֵיזוּן וַאֲפַרְנֵס וְאִכְסֵי יָתִיכִי כְּהִלְכוֹת גֻּבְרִין יְהוּדָאִין דְּמוֹקְרִין וּמְסוֹבְרִין וְזָנִין וּמְפַרְנְסִין וּמְכַסִּין יָת נְשֵׁיהוֹן בְּקֻשְׁטָא. וְיָהִיבְנָא לֵיכִי מֹהַר בְּתֻלֵּיכִי כֶּסֶף זוּזֵי מָאתָן דְּאִינוּן מִזּוּזֵי כַּסְפָּא כ״ה דְּחָזוּ לֵיכִי מִדְּאוֹרַיְתָא וּמְזוֹנַיְכִי וּכְסוּתַיְכִי וְסִפּוּקַיְכִי. וּמֵעַל עָלַיְכִי כְּאֹרַח כָּל אַרְעָא. וּצְבִיאַת פְּלוֹנִית דָּא וַהֲוַת לֵיהּ לְאִנְתּוּ לִפְלוֹנִי דְּנָא. וְרָצָה וְהוֹסִיף לָהּ תּוֹסֶפֶת עַל עִקַּר כְּתֻבָּתָהּ עַד מִשְׁלַם כָּךְ וְכָךְ וְדָא נְדוּנְיָא דְּהַנְעָלַת לֵיהּ כָּךְ וְכָךְ הַכּל נִתְקַבֵּל חָתָן זֶה וּבָא לְיָדוֹ וְנַעֲשֶׂה בִּרְשׁוּתוֹ וְזָקַף הַכּל עַל עַצְמוֹ כְּמִלְוֶה וּרְשׁוּ. וְכֵן אָמַר לָנָא פְּלוֹנִי חֲתָנָא דְּנָא אַחֲרָיוּת כְּתֻבְתָּא כּלָא עִקַּר כְּתֻבָּה וּנְדוּנְיָא וְתוֹסֶפֶת וּשְׁאָר תְּנָאֵי כְּתֻבָּה קַבָּלִית עָלַי וְעַל יַרְתַי בַּתְרָאִי וְעַל כָּל שְׁפַר אֲרַג נִכְסִין וְקִנְיָנִין דְּאִית לִי תְּחוֹת [כָּל] שְׁמַיָּא דְּקַנָּאִי וּדְעָתִיד אֲנָא לְמִיקְנָה מִמְּקַרְקְעֵי וּמִמִּטַּלְטְלֵי אַגַּב מְקַרְקְעֵי כֻּלְּהוֹן יֵהוֹן אַחְרָאִין וְעַרְבָאִין לִכְתֻבָּה דָּא כּלָא עִקָּר וּנְדוּנְיָא וְתוֹסֶפֶת לְאִתְפָּרְעָא מִנְּהוֹן בְּחַיַּי וּבָתַר מוֹתִי וַאֲפִלּוּ מִגְּלִימָא דְּעַל כַּתְפָאִי. וְקָנִינָן מִפְּלוֹנִי דָּא מִכָּל מַאי דִּכְתִיב וּמְפָרַשׁ לְעֵילָא קִנְיָן שָׁלֵם דְּלֹא כְּאַסְמַכְתָּא וּדְלָא כְּטֹפְסָא דִּשְׁטָרֵי אֶלָּא כְּחֹזֶק וּכְחֹמֶר כָּל שִׁטְרֵי כְּתֻבּוֹת הַנּוֹהֲגוֹת בְּיִשְׂרָאֵל וְכַהֹגֶן וּכְתִקּוּן רַבּוֹתֵינוּ זַ״ל וְחָתַמְנוּ עַל שְׁטַר כְּתֻבָּה זוֹ בַּזְּמַן הַנִּזְכָּר לְעֵיל וְהַכּל בָּרִיר וְשָׁרִיר וְקַיָּם:
3333On this day of the week..., [we the undersigned testify] that so and so, the son of so and so, told so and so, the daughter of so and so, a virgin bride: "Become my wife according to the faith of Moses and the Jewish people. And I, with the help of God, will work to honor you, sustain you, nourish you, provide for you and clothe you according to the custom of Jewish men who faithfully honor, sustain, nurture, provide for and clothe their wives."And as a dowry fit for a virgin, I will give you 200 silver zuzim, which are equivalent to 25 zuzim of [pure] silver,102For the coins of the Talmudic era were one part silver and seven parts base metal (Hilchot Ishut 10:8). which are fit for you according to the Torah,103Based on Hilchot Ishut (ibid.), this phrase appears to be a printer's addition, for the Rambam considers the commitment to this sum to be a Rabbinic ordinance. It is lacking in many authoritative printings and manuscripts of the Mishneh Torah. According to Ashkenazic custom, the phrase should be included in the ketubah. your sustenance, your clothing and your other needs, and I will give you conjugal rights."104This conveys a man's pledge to give his wife sha'arah (her sustenance), kesutah (her clothing) and onatah (her conjugal rights). These constitute a man's fundamental obligations in marriage, as stated in Exodus 21:10. (See also Sefer HaMitzvot, Negative Commandment 262; Hilchot Ishut 12:2.)So and so agreed and became the wife of so and so. He consented and added to the essential requirement of the marriage contract, reaching a total sum of such and such. This is the sum of the value of the dowry that she brought to the household, such and such. The groom received this entire amount. It entered his domain and came under his jurisdiction, and he accepted responsibility for the entire amount as a loan and a debt.Similarly, the groom has told us, "I accept responsibility for the entire [sum mentioned in] this marriage contract: the essential requirement of the marriage contract, the dowry, the additional amount, and all the stipulations of the marriage contract.105I.e., to provide his wife with her provisions and clothing."[This responsibility I accept upon myself,] my heirs and on all the valuable and desirable property and assets that I own beneath the heavens. [This includes] those that I already own and those that I will acquire and includes landed property and movable property that is acquired via the acquisition of landed property. All of them will be liable and accountable for the entire sum of this marriage contract: the essential requirement of the marriage contract, the dowry and the additions that payment be made from them in my lifetime and after my death, including even the cloak I wear on my shoulders."We have formalized all that is written and explicitly stated above with a comprehensive kinyan.106I.e., a kinyan sudar, the exchange of a handkerchief that serves to formalize the acquisition of property, or the establishment of a binding contractual agreement. It should not be considered as an asmachta107An agreement made facetiously, without the desire to keep it. or as a sample text for legal documents that is not binding. Instead, it is binding with all the power and rigor of marriage contracts that are customarily accepted among the Jewish people, as ordained by our Rabbis of blessed memory. We signed this marriage contract on the date mentioned above. Everything is clear, forceful and viable.
ל״דוְאִם הָיְתָה כְּתֻבַּת אַלְמָנָה כּוֹתֵב פְּלוֹנִית אַלְמְנָתָא. וְאִם הָיְתָה כְּתֻבַּת גְּרוּשָׁה כּוֹתֵב פְּלוֹנִית הַגְּרוּשָׁה. וְכֵן אִם הָיְתָה שְׁבוּיָה כּוֹתֵב פְּלוֹנִית הַשְּׁבוּיָה כְּדֵי שֶׁלֹּא יִכָּשֵׁל בָּהּ כֹּהֵן. וְכוֹתֵב וְיָהִיבְנָא לֵיכִי מֹהַרַיְכִי כֶּסֶף זוּזֵי מֵאָה דְּאִינוּן מִזּוּזֵי כַּסְפָּא תְּרֵיסַר וּפַלְגָּא דְּחָזוּ לֵיכִי וְכוּ':
34If the marriage contract is written for a widow, it should mention [the woman's name as] "so and so, the widow."108The essential requirement of the marriage contract of a widow is only one hundred zuzim. In order to explain this reduction, the marriage contract mentions her status. If the marriage contract is written for a divorcee, it should mention [the woman's name as] "so and so, the divorcee."109This is necessary for the reasons mentioned previously and also to identify the woman as being forbidden to the priesthood. Even if this husband leaves her a widow, she may not marry a priest, because of her previous divorce. Similarly, if she had been taken captive [by gentiles], one should write "so and so, who was taken captive," so that a priest will not err [and marry] her.110Such a woman is forbidden to the priesthood, as stated in Hilchot Issurei Bi'ah 18:17.[In these instances,] it is written: "And as a dowry, I will give you 100 silver zuzim, which are equivalent to 12 1/2 zuzim of [pure] silver, which are fit for you...."111If a woman had engaged in sexual relations previously outside the context of marriage, she should also be given a ketubah of this amount according to many authorities. Others maintain that she should be given the amount usually given to a virgin bride, so that she will not be publicly embarrassed. Others differentiate between a woman who had relations only with her prospective husband (in which case, the second ruling is followed) and one who had relations with others (in which case the first ruling is followed).
ל״הכְּשֶׁכּוֹתְבִין גֵּט יְבָמִין אוֹ כְּתֻבַּת יְבָמִין מְשַׂרְטֵט מְקוֹם הַפְּסוּקִים. שֶׁאָסוּר לִכְתֹּב שָׁלֹשׁ תֵּבוֹת בְּלֹא שִׂרְטוּט. וִיבָמָה שֶׁחָלְצָה מֻתֶּרֶת לְהִנָּשֵׂא בְּיוֹם חֲלִיצָתָהּ שֶׁהֲרֵי אֵינָהּ חוֹלֶצֶת עַד שֶׁתַּשְׁלִים תִּשְׁעִים יוֹם:
35When a legal record of the chalitzah or a ketubah for a yevamah is written, the place where the verses [from the Torah] are written should be ruled with a stylus, for it is forbidden to write three words [from the Torah] without ruling [the surface on which one writes].112The commentaries note the apparent contradiction between the Rambam's ruling here [which is also reflected in his Commentary on the Mishnah (Sotah 2:4)], and his ruling in Hilchot Sefer Torah 7:16, where he states that one may write three words, but not four, without ruling the writing surface. The Maggid Mishneh notes that both of these opinions have their source in Megillah 7b. He and other commentaries discuss this issue in Hilchot Sefer Torah.The contradiction was brought to the attention of the Rambam's grandson, Rabbi Yehoshua, who states that the ruling in Hilchot Sefer Torah should be followed, since there the subject is given full focus, while in Hilchot Yibbum the matter is mentioned tangentially. Significantly, however, the Shulchan Aruch (Yoreh De'ah 284:2) differs and follows the more stringent view.A yevamah who performs chalitzah is permitted to marry on the same day on which she performed chalitzah, for she should not perform chalitzah until 90 days have passed [since her husband's death].113See Chapter 1, Halachah 19.
ה׳
א׳הַיְבָמָה שֶׁנָּתַן לָהּ הַיָּבָם גֵּט כְּרִיתוּת פְּסָלָהּ וּפָסַל אֶת צָרוֹתֶיהָ עָלָיו וְעַל שְׁאָר הָאַחִין שֶׁהֲרֵי נַעֲשָׂה כְּמִי שֶׁחָלַץ לָהּ. וְאֵין הַגֵּט מוֹעִיל בִּיבָמָה אֶלָּא מִדִּבְרֵיהֶן הוֹאִיל וְהַגֵּט מְגָרֵשׁ אֵשֶׁת אִישׁ. וְכָל גֵּט שֶׁפּוֹסֵל אִשְׁתּוֹ מִן הַכְּהֻנָּה פּוֹסֵל אֶת יְבִמְתּוֹ מִן הַיִּבּוּם וְאֵינָהּ מֻתֶּרֶת לְזָר עַד שֶׁיַּחֲלֹץ לָהּ:
1When a yavam gives a yevamah a bill of divorce (a get),1This refers to a get given before the brother made a statement of intent to marry the yevamah (ma'amar). See Halachot 4 and 5. he disqualifies her and all of [his deceased brother's] other wives [from performing yibbum] with him or with any of the other brothers. It is considered as if he has performed chalitzah with her.The power of a get to affect a yevamah is Rabbinic in origin. [They instituted this decree based on the following rationale:] Since a get has the power to bring about the divorce of a married woman, and every get causes a woman to be disqualified from the priesthood, [they decreed] that it should also disqualify a yevamah from performing yibbum. [The yevamah] is not permitted to marry another man, however, until she performs chalitzah.
ב׳הַמַּאֲמָר אַף עַל פִּי שֶׁאֵינוֹ קוֹנֶה בִּיבָמָה קִנְיָן גָּמוּר וְאֵינָהּ נַעֲשֵׂית בּוֹ אֵשֶׁת אִישׁ גְּמוּרָה צְרִיכָה מִמֶּנּוּ גֵּט וְאֵינָהּ נִתֶּרֶת לְזָר אֶלָּא בַּחֲלִיצָה:
2A statement of intent to marry (ma'amar)2See Chapter 2, Halachah 1. does not fully effect the establishment of a marriage bond for a yevamah, and it does not cause her to become a married woman in the full sense. Nevertheless, [if the yavam desires to nullify the ma'amar,] he must give [the yevamah] a get. For her to marry another man, however, chalitzah must be performed.
ג׳כֵּיצַד. הָעוֹשֶׂה מַאֲמָר בִּיבִמְתּוֹ וְאֵינוֹ רוֹצֶה לִבְעל צָרִיךְ לִכְתֹּב לָהּ גֵּט שֶׁהֲרֵי נִתְקַדְּשָׁה לוֹ. וְצָרִיךְ לַחֲלֹץ לָהּ כְּדֵי לְהַתִּירָהּ לְזָר. שֶׁאֵין הַיְבָמָה נִתֶּרֶת לְזָר אֶלָּא אַחַר בְּעִילַת הַיָּבָם אוֹ אַחַר חֲלִיצָה. אֲבָל הַגֵּט פּוֹסְלָהּ לְיִבּוּם וְאֵינוֹ מַתִּירָהּ לְזָר. וְהַמַּאֲמָר אֵינוֹ קוֹנֶה בָּהּ קִנְיָן גָּמוּר כְּמוֹ הַבְּעִילָה:
3What is implied? When [a yavam] gives a ma'amar to his yevamah, but does not desire to engage in sexual relations with her, he must write a get for her, since she was consecrated unto him, and he must perform chalitzah with her to cause her to be permitted to others.3In his Commentary on the Mishnah (Yevamot 3:5), the Rambam writes that at the outset, the get should precede the chalitzah.For a yevamah is not permitted to marry another man unless she enters into sexual relations with her yavam [and then is divorced or widowed], or if she performs chalitzah. A get disqualifies her for yibbum, but does not permit her to marry another man. A ma'amar does not effect a marriage bond in a complete sense, as sexual relations do.
ד׳נָתַן מַאֲמָר לִיבִמְתּוֹ וְחָזַר וְנָתַן גֵּט לְמַאֲמָרוֹ מַה שֶּׁעָשָׂה הֲרֵי בִּטְּלוֹ וְהֻתְּרָה. וְיֵרָאֶה לִי שֶׁלֹּא הֻתְּרָה אֶלָּא לְאֶחָיו אֲבָל זֶה שֶׁנָּתַן הַגֵּט אֲסוּרָה הִיא לוֹ:
4When [a yavam] gives a ma'amar to his yevamah and then gives her a get [to nullify his ma'amar], he has negated what he brought about,4I.e., the get nullifies the kiddushin brought about by the ma'amar. and [the yevamah] is free [to perform yibbum]. It appears to me that she is free only [to perform yibbum] with his brothers, but she is forbidden to him.5Whenever the Rambam uses the expression "It appears to me," he is referring to a ruling that is not specifically mentioned in the Talmud. In this instance, Rashi (Yevamot 32a, 52a) agrees with the Rambam, but the Ra'avad and Tosafot differ and maintain that if the yavam who gave her the ma'amar and the get desires, he may still perform yibbum with her. The Shulchan Aruch (Even HaEzer 170:15) quotes both opinions, but appears to favor that of the Rambam.
ה׳נָתַן גֵּט לְזִקָּתוֹ [וְלֹא לְמַאֲמָרוֹ] פְּסָלָהּ עָלָיו וְעַל שְׁאָר הָאַחִין כְּמוֹ שֶׁבֵּאַרְנוּ וּצְרִיכָה גֵּט לְמַאֲמָרוֹ וַחֲלִיצָה לְהַתִּירָהּ לְזָר:
5When [a yavam] gives a get [to his yevamah] [to nullify] his connection to her and not {to nullify his ma'amar}, he disqualifies her [from performing yibbum] with him and his other brothers, as stated above.6In Halachah 1. The Rambam is adding that even if the yavam had already given the yevamah a ma'amar, this ruling still applies.If the yavam gives a get without specifying the reason, we assume that his intent is to sever his connection with the yevamah and not merely to nullify his ma'amar (Rashi, Yevamot 32a; Ramah, Even HaEzer 170:15).He must give her [another] get [to negate] his ma'amar and perform chalitzah with her to permit her to marry another man.
ו׳הַמַּאֲמָר שֶׁנִּתַּן לִיבָמָה תְּחִלָּה וְלֹא קְדָמוֹ דָּבָר אַחֵר וְלֹא נַעֲשָׂה אַחֲרָיו דָּבָר אַחֵר אֶלָּא שֶׁבָּעַל אוֹתָהּ זֶה שֶׁנָּתַן לָהּ הַמַּאֲמָר הוּא הַנִּקְרָא מַאֲמָר כָּשֵׁר. וְאִם קְדָמוֹ גֵּט אוֹ חֲלִיצָה בֵּין מִיָּבָם זֶה בֵּין מִיָּבָם אַחֵר בֵּין בָּהּ בֵּין בְּצָרָתָהּ. וְכֵן אִם קְדָמַתּוּ בְּעִילָה בְּצָרָתָהּ בֵּין מִמֶּנּוּ בֵּין מֵאֶחָיו. אוֹ שֶׁנַּעֲשָׂה אַחֲרָיו גֵּט אוֹ חֲלִיצָה בֵּין בָּהּ בֵּין בְּצָרָתָהּ בֵּין מִמֶּנּוּ בֵּין מֵאֶחָיו. אוֹ שֶׁבָּעַל אוֹ נָתַן מַאֲמָר אַחֵר לְצָרָתָהּ בֵּין הוּא בֵּין אָחִיו. אוֹ שֶׁנָּתַן לָהּ אָחִיו מַאֲמָר אַחֵר אוֹ בְּעָלָהּ הֲרֵי זֶה נִקְרָא מַאֲמָר פָּסוּל. בֵּין הַמַּאֲמָר שֶׁקְּדָמוּהוּ הַמַּעֲשִׂים הָאֵלּוּ בֵּין הַמַּאֲמָר שֶׁנִּתְאַחֲרוּ אַחֲרָיו:
6When a ma'amar is given to a yevamah at the outset, without its having been preceded by any other activity and without its having been followed by any activity other than the sexual relations between [the yavam] who gave the ma'amar and the yevamah, the ma'amar is referred to as "an acceptable ma'amar."By contrast, a ma'amar is referred to as "an unacceptable ma'amar" when:a) before the ma'amar either this yavam or one of his brothers gave a get to this yevamah or one of the deceased brother's other wives or performed chalitzah with her,7Once a yavam has performed chalitzah, neither he nor his brothers may perform yibbum afterwards. Similarly, once a get has been given, the yavam is obligated to perform chalitzah and may not perform yibbum. Since yibbum is not relevant, the ma'amar is not acceptable.b) either he or one of his brothers engaged in sexual relations with one of the deceased brother's other wives beforehand,8For only one of the wives of the deceased brother may be married by a yavam, as stated in Chapter 1, Halachah 9.c) after the ma'amar, either this yavam or one of his brothers gave a get to this yevamah or one of the deceased brother's other wives or performed chalitzah with her,9Since a ma'amar does not complete the bond between the yavam and the yevamah, the connection between them can be disqualified because of undesirable actions, such as those mentioned by the Rambam.d) he or one of his brothers engaged in sexual relations with one of the deceased brother's other wives or gave a ma'amar to one of them, ore) one of his brothers gave a ma'amar or engaged in sexual relations [with the yevamah to whom he gave the ma'amar].[This term applies to] both a ma'amar that preceded these deeds as well as to a ma'amar that was given afterwards.
ז׳כֵּיצַד. נָתַן גֵּט אוֹ חָלַץ לִיבִמְתּוֹ וְחָזַר וְנָתַן מַאֲמָר לָהּ אוֹ לְצָרָתָהּ בֵּין הוּא בֵּין אֶחָיו. אוֹ שֶׁבָּא עַל יְבִמְתּוֹ אוֹ נָתַן לָהּ מַאֲמָר וְחָזַר וְנָתַן לָהּ מַאֲמָר אַחֵר לְצָרָתָהּ בֵּין הוּא בֵּין אֶחָיו. אוֹ שֶׁנָּתַן מַאֲמָר לִיבִמְתּוֹ וְחָזַר אָחִיו וְנָתַן לָהּ מַאֲמָר אַחֵר אוֹ בְּעָלָהּ הֲרֵי זֶה מַאֲמָר פָּסוּל בֵּין הַמַּאֲמָר הָרִאשׁוֹן בֵּין הַמַּאֲמָר הָאַחֲרוֹן:
7What is implied? If [a yavam] a) gave a get or performed chalitzah with his yevamah and afterwards he or one of his brothers gave her or another of his deceased brother's wives a ma'amar, or b) he entered into relations with his yevamah10Although the ma'amar that follows the relations is nullified, the marriage bond established by the relations remains in effect (Rav David Arameah). or gave her a ma'amar, and then he or one of his brothers gave another of his deceased brother's wives a ma'amar or entered into relations with her, the ma'amar is unacceptable. This applies both to the first ma'amar11This ma'amar is disqualified by the actions that follow it. and the second ma'amar.12This ma'amar is disqualified by the actions that preceded it.
ח׳נִמְצֵאתָ לָמֵד שֶׁהַמַּאֲמָר בֵּין שֶׁקְּדָמוֹ מַאֲמָר אַחֵר אוֹ גֵּט אוֹ חֲלִיצָה אוֹ בְּעִילָה. בֵּין שֶׁקָּדַם הַמַּאֲמָר לְאֶחָד מֵאֵלּוּ. הֲרֵי זֶה מַאֲמָר פָּסוּל. חוּץ מִן הַנּוֹתֵן מַאֲמָר וּבָעַל בְּעִילָה אַחַר הַמַּאֲמָר שֶׁזּוֹ הִיא כְּהִלְכָתָהּ:
8Thus, we may conclude that whether a ma'amar was preceded by another ma'amar, a get, a chalitzah, or sexual relations, or whether any of these acts preceded a ma'amar, the ma'amar is unacceptable.13Although the ma'amar is unacceptable and yibbum is not allowed, a get is necessary (from both brothers, when two ma'amarim are involved), nevertheless, to nullify the kiddushin. Afterwards, one of the brothers should perform chalitzah to enable the woman to marry another man. The only exception is when [a yavam] gives a ma'amar and enters into sexual relations [with the yevamah] after the ma'amar; this follows the dictates of the law.
ט׳הַבְּעִילָה שֶׁבּוֹעֵל הַיָּבָם אֶת יְבִמְתּוֹ תְּחִלָּה אוֹ אַחַר מַאֲמָרוֹ בָּהּ וְלֹא קְדָמָהּ דָּבָר אַחֵר נִקְרֵאת בְּעִילָה כְּשֵׁרָה. וְאִם קְדָמָהּ מַאֲמָר מֵאֶחָיו אוֹ גֵּט בֵּין מִמֶּנּוּ בֵּין מֵאֶחָיו בֵּין בָּהּ בֵּין בְּצָרָתָהּ. אוֹ שֶׁקְּדָמָהּ מַאֲמָר בְּצָרָתָהּ בֵּין מִמֶּנּוּ בֵּין מֵאֶחָיו הֲרֵי זוֹ נִקְרֵאת בְּעִילָה פְּסוּלָה:
9When a yavam enters into sexual relations with his yevamah at the outset14According to Rabbinic law, the yavam should give the yevamah a ma'amar before entering into relations with her. Nevertheless, after the fact, if he failed to give her such a ma'amar, their relations still establish a marriage bond between them that the Sages allowed to continue. or after giving her a ma'amar, and nothing else preceded [their relations], [their] relations are referred to as "acceptable."If a) a ma'amar from one of his brothers [was given to this yevamah],b) a get was given [to this yevamah] or to one of [the deceased brother's] other wives, orc) a ma'amar [was given by this yavam] or one of his brothers to one of [the deceased brother's] other wives, before [the yavam and the yevamah entered into relations], the relations are referred to as unacceptable.15In all these instances, the yavam must divorce the yevamah with a get, because of their relations in which they engaged, and also perform chalitzah because of his original obligation to her. Similarly, he and/or his brothers must give a get to any of his deceased brother's other wives if she was given a ma'amar in such an instance (Maggid Mishneh, based on Yevamot 50b).
י׳הַחֲלִיצָה שֶׁחוֹלֵץ הַיָּבָם לִיבִמְתּוֹ תְּחִלָּה אִם לֹא קְדָמָהּ דָּבָר אַחֵר נִקְרֵאת חֲלִיצָה מְעֻלָּה. וְאִם קְדָמָהּ גֵּט אוֹ מַאֲמָר בֵּין מִיָּבָם זֶה בֵּין מֵאֶחָיו בֵּין בָּהּ בֵּין בְּצָרָתָהּ הֲרֵי זוֹ נִקְרֵאת חֲלִיצָה פְּחוּתָה:
10When a yavam performs chalitzah with his yevamah at the outset without any other activity preceding it, the act is referred to as "a superior chalitzah."If [the chalitzah] was preceded by a get or a ma'amar, whether from this yavam or from his brothers, [which was given] either to this yevamah or to one of [the deceased brother's] other wives, the act is referred to as an "inferior chalitzah."16See Halachah 12. See also Chapter 7, Halachah 9, from which it is apparent that whenever a yavam cannot perform yibbum with his yevamah, the chalitzah he performs with her is deemed "inferior."
י״איְבָמוֹת רַבּוֹת הַבָּאוֹת מִבַּיִת אֶחָד כֵּיוָן שֶׁנִּבְעֲלָה אַחַת מֵהֶן בְּעִילָה כְּשֵׁרָה אוֹ נֶחְלְצָה חֲלִיצָה מְעֻלָּה הֻתְּרוּ הַכּל וְנִסְתַּלְּקָה זִקַּת הַיָּבָם מֵעֲלֵיהֶן. וְאִם נִבְעֲלָה אַחַת מֵהֶן בְּעִילָה פְּסוּלָה אוֹ נִתַּן לָהּ מַאֲמָר פָּסוּל נֶאֶסְרוּ כֻּלָּן לְיִבּוּם וּצְרִיכָה גֵּט זוֹ שֶׁנִּבְעֲלָה אוֹ שֶׁנִּתַּן לָהּ מַאֲמָר. וּצְרִיכָה חֲלִיצָה [כָּל] אַחַת מֵהֶן לְהַתִּירָן לְזָר. שֶׁאֵין זִקַּת הַיִּבּוּם מִסְתַּלֶּקֶת בִּבְעִילָה פְּחוּתָה:
11When there are many yevamot coming from one household,17I.e., the deceased was married to many wives. after one of them has entered into "acceptable relations" or performed a "superior chalitzah," all are permitted [to marry other men], and their obligation to the yavam is removed.If one of them entered into "unacceptable relations" or was given an "unacceptable ma'amar," all the wives are forbidden to perform yibbum.18I.e., as mentioned above, unacceptable relations and/or an unacceptable ma'amar have an effect and nullify the possibility of performing yibbum with any of the deceased's other wives. The woman who entered into relations or who received the ma'amar must be divorced with a get. [In addition,] {each} one19There is a question among the commentaries if the word "each" is included in the text of the Mishneh Torah or not. The Maggid Mishneh maintains that this word should be included in the text. According to his interpretation, even if the yavam performs chalitzah with one of the deceased's wives who did not receive a ma'amar or engage in relations with the yavam, this chalitzah does not remove the obligation from the deceased's other wives, and each of them must perform chalitzah.The Lechem Mishneh differs and maintains that the word "each" is a later addition. (And indeed most authoritative manuscripts and early printings of the Mishneh Torah substantiate this contention.) According to this view, if the yavam performs chalitzah with one of the deceased's wives who did not receive a ma'amar or engage in relations with the yavam, this chalitzah removes the obligation from the deceased's other wives, and none of them is required to perform chalitzah.Even according to this view, if the yavam performs chalitzah with the yevamah who received an unacceptable ma'amar or engaged in unacceptable relations, this chalitzah does not remove the obligation from the deceased's other wives, and each of them must perform chalitzah.The Shulchan Aruch (Even HaEzer 170:19) quotes the Maggid Mishneh's interpretation of the Rambam's ruling, but mentions that other authorities differ. of them is required to perform chalitzah to be permitted to marry another man. For "unacceptable relations" do not remove [a yevamah's] obligation to her yavam.
י״בנֶחְלְצָה אַחַת מֵהֶן חֲלִיצָה פְּחוּתָה הֻתְּרָה לְהִנָּשֵׂא לְזָר זוֹ שֶׁנֶּחְלְצָה אֲבָל צָרָתָהּ אֲסוּרָה עַד שֶׁתַּחֲלֹץ גַּם הִיא אוֹ עַד שֶׁיַּחְלְצוּ כָּל הָאַחִין לָרִאשׁוֹנָה שֶׁנֶּחְלְצָה הַחֲלִיצָה הַפְּחוּתָה. שֶׁאֵין חֲלִיצָה פְּחוּתָה מְסַלֶּקֶת זִקַּת יִבּוּם מִבַּיִת זֶה עַד שֶׁתַּחֲזֹר עַל כָּל הָאַחִין אוֹ עַד שֶׁתֵּחָלֵץ כָּל אַחַת מֵהֶן:
12If one of [a deceased man's wives] performs an "inferior chalitzah," she is permitted to marry another man, but [the deceased's] other wives remain forbidden [to marry] unless they perform chalitzah or unless all the brothers perform chalitzah with [the yevamah] who performed the "inferior chalitzah." For an "inferior chalitzah" does not remove the obligation of yibbum from this household until [the yevamah who performed the "inferior chalitzah" performs chalitzah] with all the brothers, or all [the deceased's wives] perform chalitzah.
י״גכָּל יְבָמָה שֶׁנִּבְעֲלָה לִיבָמָהּ בֵּין בְּעִילָה כְּשֵׁרָה בֵּין בְּעִילָה פְּסוּלָה. וַאֲפִלּוּ בְּעָלָהּ אַחַר שֶׁחָלַץ לָהּ בֵּין הוּא בֵּין אֶחָיו בֵּין לְשֵׁם אִישׁוּת בֵּין לְשֵׁם יַבְּמוּת. וַאֲפִלּוּ בָּעַל צָרָתָהּ אַחַר שֶׁבָּעַל בְּעִילָה כְּשֵׁרָה בֵּין הוּא בֵּין אֶחָיו. הֲרֵי זוֹ צְרִיכָה גֵּט שֶׁהֲרֵי נַעֲשֵׂית אֵשֶׁת אִישׁ בַּבְּעִילָה. וְכֵן כָּל יְבָמָה שֶׁנִּתַּן לָהּ מַאֲמָר בֵּין מַאֲמָר כָּשֵׁר בֵּין מַאֲמָר פָּסוּל הֲרֵי זוֹ צְרִיכָה גֵּט מִפְּנֵי הַמַּאֲמָר כְּמוֹ שֶׁבֵּאַרְנוּ וְאַחַר כָּךְ יָסוּר אִסּוּר הַמַּאֲמָר:
13Whenever a yevamah engages in sexual relations with her yavam, [a get is required to terminate the relationship], regardless of whether or not the relations are acceptable. [This applies] even if [the yavam] engaged in relations with [the yevamah] after performing chalitzah with her.20In which instance she is forbidden to him by Rabbinic decree, as stated in Chapter 1, Halachah 12.[Similarly, this ruling applies] regardless of whether [a yavam] or his brothers engaged in the relations for the sake of establishing a marriage bond21I.e., consecrating the woman by engaging in sexual relations with her, as stated in Hilchot Ishut 1:2. or for the sake of yibbum. Even if [a yavam] or his brother engages in relations with another [one of the deceased's] wives after [the yavam] engages in "acceptable relations" with [his yevamah],22In which case the relations with the second yevamah violate a positive commandment of the Torah, as stated in Chapter 1, Halachah 12. he must divorce the woman with a get, for these relations effect the establishment of a marriage bond.23For even when the relations violate a Rabbinic prohibition or a positive commandment, a marriage bond is effected, as stated in Hilchot Ishut 4:14.Similarly, whenever a yevamah is given a ma'amar - whether an "acceptable ma'amar" or an "unacceptable ma'amar" - a get is required because of the ma'amar, as explained.24Halachah 2. Only then is the prohibition brought about by the ma'amar removed.
י״דכְּבָר אָמַרְנוּ שֶׁאֵין הַגֵּט דּוֹחֶה הַיְבָמָה דְּחִיָּה גְּמוּרָה וְכֵן הַמַּאֲמָר אֵינוֹ קוֹנֶה בָּהּ קִנְיָן גָּמוּר. אֲבָל הַבְּעִילָה קוֹנָה קִנְיָן גָּמוּר. וְהַחֲלִיצָה דּוֹחָה אוֹתָהּ דְּחִיָּה גְּמוּרָה. לְפִיכָךְ גֵּט אַחַר גֵּט בִּיבָמָה אוֹ מַאֲמָר אַחַר מַאֲמָר מוֹעִיל. אֲבָל בְּעִילָה אַחַר בְּעִילָה וַחֲלִיצָה אַחַר חֲלִיצָה אֵין הָאַחֲרוֹנָה מוֹעֶלֶת כְּלוּם. וְכֵן גֵּט אוֹ חֲלִיצָה אַחַר הַבְּעִילָה אֵינָהּ כְּלוּם:
14As mentioned, a get does not dissolve [a yavam's connection with] his yevamah entirely.25As mentioned in Halachah 1, it is only through chalitzah that the connection is completely dissolved. Similarly, a ma'amar does not acquire her [as a wife for the yavam] in a complete way. It is [only] sexual relations that establish the marriage bond in a complete manner, and it is [only] chalitzah that dissolves the connection entirely.Therefore, when a yevamah is given one get after another, or one ma'amar after another, there is an effect.26As explained in the following halachah. When, however, [another brother] engages in relations with [a yevamah with whom a yavam] engaged in relations, or performs chalitzah with [a yevamah with whom a yavam] performed chalitzah, the second relations or the second chalitzah are of no consequence.27The intent is that the relations are of no consequence with regard to the laws of yibbum. They are, however, adulterous relations, and if the yevamah engages in them willingly, she is not permitted to remain married to her husband. Similarly, a get or chalitzah that follows relations is of no consequence.
ט״וכֵּיצַד. יָבָם שֶׁנָּתַן גֵּט לִיבִמְתּוֹ וְחָזַר וְנָתַן גֵּט לְצָרָתָהּ הֲרֵי זֶה אָסוּר בִּקְרוֹבוֹת שְׁתֵּיהֶן. וְכֵן שְׁנֵי יְבָמִין שֶׁנָּתְנוּ שְׁנֵי גִּטִּין לִיבָמָה אַחַת זֶה אַחַר זֶה הֲרֵי זוֹ כִּגְרוּשָׁה לִשְׁנֵיהֶן וּשְׁנֵיהֶן אֲסוּרִין בִּקְרוֹבוֹתֶיהָ וְאֶחָד מֵהֶן חוֹלֵץ. וְכֵן אִם נָתַן גֵּט לִיבִמְתּוֹ וְחָזַר וְנָתַן אָחִיו גֵּט לְצָרָתָהּ כָּל אֶחָד אָסוּר בִּקְרוֹבוֹת זוֹ שֶׁנָּתַן לָהּ הַגֵּט. וְכֵן אִם נָתְנוּ מַאֲמָר אַחַר מַאֲמָר כְּמוֹ שֶׁבֵּאַרְנוּ. אֲבָל הַיָּבָם שֶׁחָלַץ לִיבִמְתּוֹ וְחָזַר וְחָלַץ לְצָרָתָהּ בֵּין הוּא בֵּין אָחִיו. וְכֵן שְׁתֵּי יְבָמִין שֶׁחָלְצוּ זֶה אַחַר זֶה לִיבָמָה אַחַת אֵין חֲלִיצָה אַחֲרוֹנָה כְּלוּם וְאֵין הַחוֹלֵץ אוֹתָהּ בָּאַחֲרוֹנָה אָסוּר בִּקְרוֹבוֹתֶיהָ. שֶׁזֶּה כְּחוֹלֵץ לִשְׁאָר הַנָּשִׁים שֶׁאֵין לוֹ עֲלֵיהֶן זִקָּה:
15What is implied? When a yavam gives a get to a yevamah, and afterwards gives a get to another one of [the deceased's] wives, he is forbidden to marry the relatives of both women.28A person is forbidden to marry the women who are closely related to his divorcee. In this instance, although neither of these gittin is necessary, the prohibition is still applied in both cases.In this instance, both women are required to perform chalitzah in order to marry another man. See Shulchan Aruch (Even HaEzer 170:5).Similarly, when two yevamim give two gittin to one yevamah, one after the other, she is considered to have been divorced by both of them. They are both forbidden to marry her relatives; one of them should perform chalitzah [with her].29Both brothers are not required to perform chalitzah in order for her to be permitted to marry others. Performing chalitzah with her does not, however, cause the deceased's other wives to become permitted, as explained in Halachot 11 and 12.Similarly, if [a yavam] gives a get to his yevamah, and then his brother gives a get to another one of [the deceased's] wives, each brother is forbidden to marry the relatives of the woman to whom he gave the get. Similarly, if [two brothers each] give a ma'amar, one after the other, [each must give a get], as explained.30See Halachah 13.When, however, a yavam performs chalitzah with his yevamah, and afterwards either he or his brother perform chalitzah with another of [the deceased's] wives, or two yevamim perform chalitzah with the same yevamah, the second chalitzah is of no consequence, and the brother who performed it is not forbidden to marry the woman's relatives.31As mentioned in Chapter 1, Halachah 14, the same relatives who are forbidden to a man who divorces his wife are forbidden to a man who performs chalitzah. It is just as if he performed chalitzah with another woman who is not under obligation to him.
ט״זוְכֵן הַבּוֹעֵל יְבִמְתּוֹ וְחָזַר בֵּין הוּא בֵּין אָחִיו וְחָלַץ לָהּ אוֹ לְצָרָתָהּ אֵין חֲלִיצָה זוֹ כְּלוּם. וְכֵן אִם חָזַר אָחִיו וְנָתַן גֵּט לָהּ אוֹ לְצָרָתָהּ אֵינוֹ כְּלוּם. חָזַר אָחִיו וְנָתַן לָהּ מַאֲמָר אוֹ בָּעַל לֹא עָשָׂה כְּלוּם מֵאַחַר שֶׁבָּעַל אָחִיו תְּחִלָּה קָנָה קִנְיָן גָּמוּר וְאֵין הַקִּדּוּשִׁין תּוֹפְסִין בְּאֵשֶׁת אִישׁ. אֲבָל אִם נָתַן מַאֲמָר לְצָרָתָהּ אוֹ בָּעַל צָרָתָהּ צְרִיכָה גֵּט מִמֶּנּוּ כְּמוֹ שֶׁבֵּאַרְנוּ:
16Similarly, when a man engages in relations with his yevamah,32This refers to "acceptable relations," as stated in Halachah 11. If the relations are "unacceptable," different laws apply (Maggid Mishneh). and then he or one of his brothers performs chalitzah with her or with one of the other wives [of his deceased brother], this chalitzah is of no consequence.Similarly, if his brother gave a get to [this yevamah or] any of the other wives [of his deceased brother], it is of no consequence. Nor is it of consequence if one of his brothers gives the woman a ma'amar or engages in relations with her.33If, however, the yevamah engages in these relations willingly, she must be divorced by her husband for committing adultery. Once the brother engaged in relations with her, he acquired her [as his wife] in a complete manner, and a married woman cannot be consecrated by another man. If, however, one of the brothers gave a ma'amar to one of the other wives [of his deceased brother], or engaged in relations with her, he must release her with a get, as we have explained.34See Halachah 13.
י״זשְׁנֵי יְבָמִין שֶׁיִּבְּמוּ שְׁתֵּי יְבָמוֹת הַבָּאוֹת מִבַּיִת אֶחָד וְלֹא נוֹדַע מִי יִבֵּם תְּחִלָּה שְׁנֵיהֶן יוֹצִיאוּ בְּגֵט וְיֻתְּרוּ לְזָרִים וַאֲסוּרוֹת לַיְבָמִין. לְפִיכָךְ רְאוּבֵן שֶׁהָיָה בִּירוּשָׁלַיִם וְלוֹ שְׁתֵּי נָשִׁים אַחַת בְּעַכּוֹ וְאַחַת בְּצוֹר וְשִׁמְעוֹן אָחִיו בְּעַכּוֹ וְלֵוִי אָחִיו בְּצוֹר וְשָׁמְעוּ שֶׁמֵּת רְאוּבֵן הַדִּין נוֹתֵן שֶׁלֹּא יְיַבֵּם אֶחָד מֵהֶן עַד שֶׁיִּוָּדַע מֶה עָשָׂה אָחִיו שֶׁמָּא קָדַם וְיִבֵּם. קָדַם אֶחָד מֵהֶן וְיִבֵּם אֵין מוֹצִיאִין מִיָּדוֹ עַד שֶׁיִּוָּדַע שֶׁאָחִיו יִבֵּם תְּחִלָּה. רָצָה הָאֶחָד לַחֲלֹץ קֹדֶם שֶׁיָּדַע מֶה עָשָׂה אָחִיו אֵין מוֹנְעִין אוֹתוֹ:
17[The following rules apply when] two yevamim perform yibbum with two yevamot coming from the same household, and it is not known who performed yibbum first.35I.e., the deceased left two or more wives and was survived by two or more brothers. One brother decided to perform yibbum with one of the widows. Unknowingly, another brother decided to perform yibbum with another widow, and it is not known who performed yibbum first. Both should divorce [the women] with gittin.36For the marriage of one of them is sinful, transgressing a positive commandment. Since it cannot be determined whose marriage is sinful, both are required to divorce.See also the Beit Yosef (Even HaEzer 170), who quotes a responsum of the geonim that also requires that one of the brothers perform chalitzah. The rationale is that perhaps one of the brothers gave his yevamah a ma'amar, and then the other one performed yibbum. Since these are "unacceptable relations," chalitzah is also necessary, as explained above. The women are then permitted to marry other men, but are forbidden to the yevamim.Consequently, when Reuven lived in Jerusalem and he had two wives, one living in Akko and one living in Tyre, [and two brothers:] Shimon who lived in Akko and Levi who lived in Tyre, if there is a report that Reuven died, according to law it would be proper for neither brother to perform yibbum until he knows what his other brother did. For perhaps he performed yibbum first.If one of the brothers does perform yibbum, he is not forced to divorce his wife until it is determined that his other brother performed yibbum first.37For it is not known that his brother performed yibbum, and even if he did perform yibbum, perhaps he did so after this brother performed yibbum. Since there are several doubts involved (םפק םפקא), the yavam is not forced to divorce until he has determined that his brother has also performed yibbum. If one brother desired to perform chalitzah without waiting to see what his other brother did, he is not prevented from doing so.38The commentaries have questioned this ruling, based on Chapter 3, Halachah 16, which requires a woman to wait until she discovers what has taken place overseas, lest the chalitzah be unnecessary, she discover that fact and marry a priest and an onlooker not know all the details of the situation. Such a scenario could also happen in the present situation.There are commentaries that try to reconcile the Rambam's ruling. For example, Mishneh LaMelech explains that in the present instance, the doubt could be protracted indefinitely, while in the previous case, everything is dependent on a woman's giving birth, and the matter can be clarified after nine months. Nevertheless, because of these objections, the Shulchan Aruch (Even HaEzer 170:20) does not mention this element of the Rambam's ruling.
י״חיָבָם קָטָן בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד בִּיאָתוֹ כְּמַאֲמָר מִן הַגָּדוֹל שֶׁאֵינוֹ קוֹנֶה קִנְיָן גָּמוּר. וּמַאֲמָר בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד אִם נְתָנוֹ בַּתְּחִלָּה מוֹעִיל וַהֲרֵי הוּא פּוֹסֵל בּוֹ עַל הַגָּדוֹל אֲבָל אִם נְתָנוֹ בַּסּוֹף אֵינוֹ כְּלוּם. וְגִטּוֹ וַחֲלִיצָתוֹ אֵינָם כְּלוּם בֵּין בַּתְּחִלָּה בֵּין בַּסּוֹף:
18When a yavam who is below the age of majority, [but more than] nine years and one day old, enters into relations [with a yevamah], [the consequence] is equivalent to [that of] a ma'amar given by an adult;39As mentioned in Chapter 1, Halachah 15 (and Hilchot Ishut 11:3), when a boy over nine years old enters into sexual relations with a woman, his actions are considered of consequence in certain contexts.The Maggid Mishneh and Rashi (Kiddushin 19a) explain that when a minor above nine years old enters into relations with a woman, he acquires her as his wife according to Scriptural law. (Nevertheless, if another man enters into relations with her, the other man is not executed for committing adultery.) Our Sages, however, reduced the level of connection established and caused their marriage bond to have only the effectiveness of a ma'amar.[The rationale why yibbum performed by a minor is effective although a minor does not possess the intellectual maturity to take responsibility for his conduct is that we find that yibbum does not require intent at all; what is significant is the act of sexual relations. (See Chapter 2, Halachah 3.)]Tosafot differ and maintain that, in this context, the relations of a nine-year old are of no consequence according to Scriptural law. Nevertheless, the Rabbis enforced a stringency and considered these relations to be equivalent to a ma'amar. [the yevamah] is not acquired as a wife in a complete manner.40This concept is illustrated in the halachah that follows, as is another consequence of the principle that the sexual relations that this youth engages in are considered equivalent to a ma'amar given by an adult.When [a yavam who is below the age of majority, but more than] nine years and one day old, gives a ma'amar at the outset, it is effective and causes [the yevamah] to be forbidden to [his brothers] who are past majority. If, however, he gives [the ma'amar after a ma'amar has been given by his brothers who are past majority, his ma'amar] is of no consequence.[Similarly,] a get that he gives or chalitzah that he performs is always of no consequence, whether it precedes [his brothers' actions] or follows them.41As mentioned in Chapter 4, Halachah 16, chalitzah performed by a minor is of no consequence, because the passage concerning chalitzah explicitly mentions an איש - i.e., a male past majority. Since chalitzah performed by a minor is of no consequence, a get given by him is of no consequence, because the disqualification caused by a get is an extension by the Rabbis of the Scriptural prohibition caused by chalitzah.Significantly, the Rambam's statements here represent a reversal of his ruling in his Commentary on the Mishnah (Yevamot 10:6), in which he rules that a get given by a minor does disqualify a yevamah from performing yibbum with the minor's brothers.
י״טכֵּיצַד. בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁבָּא עַל יְבִמְתּוֹ אוֹ שֶׁנָּתַן לָהּ מַאֲמָר תְּחִלָּה פְּסָלָהּ עַל שְׁאָר אַחִין. אֲבָל אִם עָשָׂה הַגָּדוֹל מַאֲמָר בִּיבִמְתּוֹ וְחָזַר בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד וְנָתַן לָהּ אוֹ לְצָרָתָהּ מַאֲמָר לֹא עָשָׂה כְּלוּם וְלֹא פְּסָלָהּ עַל אָחִיו הַגָּדוֹל. חָזַר בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד וּבָא עָלֶיהָ אוֹ עַל צָרָתָהּ אַחַר מַאֲמַר אָחִיו הַגָּדוֹל פְּסָלָהּ עַל הַגָּדוֹל כִּשְׁנֵי גְּדוֹלִים שֶׁעָשׂוּ מַאֲמָר אַחַר מַאֲמָר כְּמוֹ שֶׁבֵּאַרְנוּ:
19What is implied? When a [yavam who is below the age of majority, but more than] nine years and one day old, engages in relations with his yevamah, or gives her a ma'amar at the outset, he disqualifies her [from performing yibbum] with his other brothers. If, however, [one of the brothers] past majority gave his yevamah a ma'amar, and then [the brother who is below the age of majority, but more than] nine years and one day old, gives her or another one of the wives [of the deceased brother] a ma'amar, his actions are of no consequence, and he does not cause [the yevamah] to be forbidden to his elder brother.42Had the younger brother been past the age of majority, he would have disqualified the yevamah from performing yibbum with his older brother, as stated in Halachot 7 and 14.If, however, [the brother who is below the age of majority, but more than] nine years and one day old engages in relations with her or with another one of the wives of [the deceased brother], he causes [the yevamah] to be forbidden to his elder brother, as would be the case when two [brothers] past majority each gave a ma'amar one after the other, as we have explained.43See Halachot 7 and 14.
כ׳בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁבָּא עַל יְבִמְתּוֹ וְחָזַר אָחִיו הַגָּדוֹל וּבָא עָלֶיהָ אוֹ חָלַץ אוֹ נָתַן גֵּט לָהּ אוֹ לְצָרָתָהּ הֲרֵי זֶה פְּסָלָהּ עַל הַקָּטָן. וְכֵן אִם חָזַר הַקָּטָן וּבָא עַל צָרָתָהּ אוֹ בָּא אָחִיו הָאַחֵר שֶׁהוּא בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד עָלֶיהָ אוֹ עַל צָרָתָהּ נִפְסְלָה עָלָיו כְּדִין כָּל מַאֲמָר וּמַאֲמָר:
20When a [yavam who is below the age of majority, but more than] nine years and one day old, has engaged in relations with his yevamah, and then one of his brothers past majority entered into relations with her, performed chalitzah with her, gave her a get, or performed one of these activities with another [one of the deceased brother's] wives, he disqualified the minor [from marrying his yevamah].44Since the minor's relations possess only the strength of a ma'amar, their effectiveness can be nullified by the actions of an older brother.Similarly, if the minor has engaged in relations with another [one of the deceased brother's] wives, or another brother who is also [below the age of majority, but more than] nine years and one day old, has engaged in relations with this woman, or with another [one of the deceased brother's] wives, [the woman with whom the first brother originally engaged in relations] is disqualified [from marrying him], as is the ruling whenever two ma'amarim are given one after the other.
כ״אבֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁבָּא עַל יְבִמְתּוֹ וְהִגְדִּיל וְלֹא בָּא עָלֶיהָ מִשֶּׁהִגְדִּיל צְרִיכָה גֵּט וַחֲלִיצָה. גֵּט מִפְּנֵי בִּיאָתוֹ שֶׁהִיא כְּמַאֲמָר וַחֲלִיצָה לְהַתִּירָהּ לְזָר שֶׁהֲרֵי לֹא נִבְעֲלָה בְּעִילָה שֶׁקּוֹנָה קִנְיָן גָּמוּר. וְאִם בָּא עָלֶיהָ מִשֶּׁהִגְדִּיל הֲרֵי זוֹ צְרִיכָה גֵּט בִּלְבַד:
21When a [yavam who is below the age of majority, but more than] nine years and one day old, engages in relations with his yevamah and then does not engage in relations with her again after he attains majority, [he is] required [to give her] a get and perform chalitzah. The get [is necessary] because the relations in which he engaged are considered equivalent to a ma'amar. The chalitzah [is necessary] in order to permit the woman to marry another man, for she did not engage in relations that established a complete marriage bond.If [her yavam] engaged in relations with her after he attained majority, all that is required [to enable her to marry another man] is a get.45For the relations in which they engaged after the yavam attained majority complete the marriage bond.
כ״באֶחָד בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד. וְאֶחָד בֶּן עֶשְׂרִים שָׁנָה שֶׁלֹּא הֵבִיא שְׁתֵּי שְׂעָרוֹת וְלֹא נוֹלְדוּ בּוֹ סִימָנֵי סָרִיס כְּמוֹ שֶׁבֵּאַרְנוּ בִּתְחִלַּת הַסֵּפֶר:
22[The same laws that apply to a yavam who is below the age of majority, but more than] nine years and one day old [apply to a yavam who] is twenty years old and has not manifested signs of physical maturity, but has also not manifested physical signs of impotency, as explained in the beginning of this book.46As explained in Hilchot Ishut 2:11, a male who does not manifest signs of impotency is considered a minor until he attains the age of 35.
כ״גקְטַנָּה שֶׁרְאוּיָה לְמָאֵן. וְהַחֵרֶשֶׁת. אַף עַל פִּי שֶׁקִּדּוּשֵׁי שְׁתֵּיהֶן מִדִּבְרֵי סוֹפְרִים כְּמוֹ שֶׁבֵּאַרְנוּ שְׁנֵי מִינֵי קִדּוּשִׁין הֵן. קְטַנָּה יֵשׁ לָהּ קִדּוּשִׁין כְּדֵי שֶׁלֹּא יִנְהֲגוּ בָּהּ מִנְהַג הֶפְקֵר. וְקִדּוּשֶׁיהָ תְּלוּיִין עַד שֶׁתַּגְדִּיל. וְחֵרֶשֶׁת תִּקְּנוּ לָהּ נִשּׂוּאִין כְּדֵי שֶׁלֹּא תִּשָּׁאֵר פְּנוּיָה לְעוֹלָם. לְפִיכָךְ אִם הָיוּ כָּל הַיְבָמוֹת הַבָּאוֹת מִבַּיִת אֶחָד קְטַנּוֹת אוֹ חֵרְשׁוֹת בִּיאָתָהּ שֶׁל אַחַת מֵהֶן פּוֹטֶרֶת אֶת כֻּלָּן:
23As explained,47See Hilchot Ishut 4:7-9. both the consecration of a girl below the age of majority who is fit to leave her husband through the rite of mi'un,48As explained in Hilchot Ishut 4:7 and Hilchot Gerushin 11:1, when a girl's father died and she is below the age of majority, our Sages ordained that her mother and/or brothers can arrange a marriage for her. This marriage is not binding according to Scriptural law. Accordingly, when creating this option, our Sages gave the girl the possibility of nullifying the marriage before she reaches majority merely by making a verbal statement. and [the consecration of a girl who is] a deaf-mute are Rabbinic institutions. Nevertheless, they are two different types of ordinances. [For] the consecration of a minor was ordained so that [men] will not relate to her in an unrestrained manner.49If, however, she marries, they would respect the limits of modesty and her husband would protect her (Yevamot 112b). Her consecration is thus tentative until she comes of age. Consecration was ordained for a deaf-mute [for a different reason,] so that she will not remain unmarried forever.Accordingly, if all the yevamot coming from one household are below majority or all are deaf mutes,50If, however, one is a mentally capable woman past the age of majority, yibbum or chalitzah should be performed with her - for her marriage is binding according to Scriptural law - and not with those whose marriage is binding only by virtue of a Rabbinic ordinance. entering into relations with one of them frees them all from their obligation.51For their marriage bonds all share the same status.
כ״דהָיְתָה אַחַת חֵרֶשֶׁת וְאַחַת קְטַנָּה אֵין בִּיאַת אַחַת מֵהֶן פּוֹטֶרֶת אֶת צָרָתָהּ. וְכֵיצַד תַּקָּנָתָן. מְלַמְּדִין הַקְּטַנָּה שֶׁתְּמָאֵן וְכוֹנֵס אֶת הַחֵרֶשֶׁת. וְאִם רָצָה לְגָרְשָׁהּ כּוֹתֵב לָהּ גֵּט אַחַר שֶׁיָּבוֹא עָלֶיהָ וְתֻתַּר לְזָר:
24If [by contrast, the deceased was married to] a deaf-mute and a minor, engaging in relations with one does not free the other of her obligation.52The marriage relationship of each one possesses an advantage over the other. The marriage with the minor, had it not been interrupted, could have blossomed into a marriage bond binding according to Scriptural law. On the other hand, there is an advantage to the marriage to the deaf-mute, because the minor had the option of ending her marriage at will, while that of the deaf-mute was binding. As evident from Halachot 27 and 28, the marriage to the minor is preferable.What is the alternative? The minor should be instructed to [nullify her marriage through] mi'un,53For just as she can dissolve her relationship with her husband while he is alive, she can nullify it afterwards, freeing herself from any obligation to the yavam (Hilchot Gerushin 11:3).The Ra'avad differs and maintains that a minor is permitted to free herself from an obligation to the yavam through mi'un only when this facilitates the establishment of a marriage bond that is binding according to Scriptural law. (See Halachah 30 and Chapter 7, Halachah 15.) In this instance, however, she is not given the privilege. Instead, she must wait until she attains majority and then perform chalitzah. The Shulchan Aruch (Even HaEzer 171:1) quotes the Rambam's view. and [a yavam] should marry the deaf-mute.54Since the deaf-mute is not considered responsible for her actions, she cannot perform chalitzah. She must either perform yibbum or remain unmarried for the remainder of her life.If the yavam performs yibbum with the minor, he may not perform yibbum with the deaf-mute, for he is permitted to perform yibbum only with one of his deceased brother's wives. If he desires to divorce her, he may write a get for her after they engage in relations.55The deaf-mute is not considered responsible for her actions. Nevertheless, since according to Scriptural and Talmudic law a get may be given without the woman's consent, the divorce is binding (Hilchot Gerushin 10:23). She is then permitted [to marry] another man.
כ״ההָיְתָה אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת בִּיאַת הַפִּקַּחַת אוֹ חֲלִיצָתָהּ פּוֹטֶרֶת הַחֵרֶשֶׁת. וְאֵין בִּיאַת הַחֵרֶשֶׁת פּוֹטֶרֶת הַפִּקַּחַת שֶׁאֵין קִדּוּשֶׁיהָ אֶלָּא מִדִּבְרֵיהֶן. וְכֵן גְּדוֹלָה וּקְטַנָּה בִּיאַת הַגְּדוֹלָה אוֹ חֲלִיצָתָהּ פּוֹטֶרֶת הַקְּטַנָּה וְאֵין בִּיאַת הַקְּטַנָּה פּוֹטֶרֶת אֶת הַגְּדוֹלָה:
25If one [of the deceased's wives] was mentally competent, and one was a deaf-mute, engaging in relations with the mentally competent woman, or performing chalitzah with her frees the deaf-mute of her obligation. Engaging in relations with the deaf-mute, by contrast, does not free the mentally competent woman [from her obligation]. For the consecration of the deaf-mute is merely a Rabbinic institution.56And performing yibbum with a woman who is consecrated only according to Rabbinic law does not free a woman who is consecrated according to Scriptural law from her obligation.Similar [laws apply when one of the deceased wives was] above majority, and one was a minor. Engaging in relations with the woman past majority, or performing chalitzah with her frees the minor of her obligation. Engaging in relations with the minor, by contrast, does not free the woman past majority [from her obligation].
כ״והָיוּ שְׁתֵּיהֶן קְטַנּוֹת הָרְאוּיוֹת לְמָאֵן וּבָא הַיָּבָם עַל אַחַת מֵהֶן וְחָזַר וּבָא אוֹ הוּא אוֹ אָחִיו עַל הַשְּׁנִיָּה לֹא פָּסַל אֶת הָרִאשׁוֹנָה. אֲבָל מְלַמְּדִין אֶת הַשְּׁנִיָּה שֶׁתְּמָאֵן וִיקַיֵּם זֶה יְבִמְתּוֹ הַקְּטַנָּה שֶׁנִּבְעֲלָה תְּחִלָּה:
26[The following rules apply if] both [the deceased's wives] were minors who are entitled to absolve their marriages through mi'un. If the yavam engages in relations with one of them, and then he or one of his brothers engages in relations with the other, this does not disqualify the marriage to the first.57For, as mentioned in Halachah 14, after a yavam engages in relations with his yevamah, their relationship cannot be disqualified. Nevertheless, we should instruct [the second one] to dissolve her marriage through] mi'un.58If the second wife does not perform mi'un, her consecration is also binding. Nevertheless, it involves the violation of a positive commandment. Moreover, a get is required for nullifying this marriage, and she becomes forbidden to the priesthood. If, however, she dissolves her marriage through mi'un, a get is not required. He should then maintain [his marriage] with the minor yevamah with whom he engaged in relations first.
כ״זוְכֵן הַדִּין בִּקְטַנָּה וְחֵרֶשֶׁת שֶׁבָּא הַיָּבָם תְּחִלָּה עַל הַקְּטַנָּה וְחָזַר וּבָא הוּא אוֹ אָחִיו עַל הַחֵרֶשֶׁת לֹא פָּסַל אֶת הַקְּטַנָּה וְהַחֵרֶשֶׁת צְרִיכָה גֵּט. שֶׁבִּיאַת הַקְּטַנָּה מְעֻלָּה מִבִּיאַת הַחֵרֶשֶׁת. שֶׁהַקְּטַנָּה רְאוּיָה לְאַחַר זְמַן. לְפִיכָךְ יְקַיֵּם הַקְּטַנָּה שֶׁנִּבְעֲלָה תְּחִלָּה:
27Similar laws apply if [the deceased was married to] a minor and a deaf-mute. If the yavam first enters into relations with the minor, and then he or one of his brothers engages in relations with the deaf-mute, this does not disqualify the marriage to the minor. The deaf-mute, however, must be divorced via a get.59For relations with her are forbidden, and yet her consecration is binding.[The rationale is that] the relations with the minor are considered superior to relations with the deaf-mute, for ultimately the minor will be fit [to enter into a marriage bond that is binding according to Scriptural law]. Therefore, he should maintain his relationship with the minor with whom he engaged in relations first.60Although the Ra'avad differs with the Rambam and maintains that it is forbidden to remain married to the minor, the Shulchan Aruch (Even HaEzer 171:7) follows the Rambam's ruling.
כ״חבָּא הַיָּבָם תְּחִלָּה עַל הַחֵרֶשֶׁת וְחָזַר וּבָא הוּא אוֹ אָחִיו עַל הַקְּטַנָּה פָּסַל אֶת הַחֵרֶשֶׁת. וּמְלַמְּדִין הַקְּטַנָּה שֶׁתְּמָאֵן וְהַחֵרֶשֶׁת יוֹצְאָה בְּגֵט:
28[In the above situation,] if the yavam first enters into relations with the deaf-mute, and then he or one of his brothers engages in relations with the minor, this disqualifies the marriage to the deaf-mute.61For the marriage to the minor is preferable to that of the deaf-mute. We should instruct the minor to dissolve her marriage through] mi'un;62Since the yavam entered into relations with the deaf-mute first, he is not able to remain married to the minor. She should therefore dissolve her obligation to him through mi'un. The Sages preferred this option rather than having her wait until she attains majority and receives a get and chalitzah, because of the impression that the latter process might create (Or Sameach). Moreover, far fewer legal details are involved (Kin'at Eliyahu).Note the Tur (Even HaEzer 171), which interprets the Ra'avad's comments on this halachah as implying that the yavam should remain married to the minor. The Tur does not accept this view. the deaf-mute must be divorced with a get.63Once the minor has performed mi'un, it appears that there is no obligation for the deaf-mute to be divorced, for the minor has uprooted her connection to her deceased husband, and as such, the relations with her seemingly should not affect the status of the deaf-mute. Nevertheless, our Sages ruled that the deaf-mute must be divorced, as a penalty, because the yavam should have waited to engage in relations with her until the minor performed mi'un (Or Sameach).The Tur (loc. cit) differs and maintains that the yavam may remain married to the deaf-mute. The Shulchan Aruch (Even HaEzer 171:8) quotes the Rambam's view, while the Ramah mentions that of the Tur.
כ״טהָיוּ אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת. בָּא הַיָּבָם עַל הַפִּקַּחַת וְחָזַר וּבָא הוּא אוֹ אָחִיו עַל הַחֵרֶשֶׁת לֹא פָּסַל אֶת הַפִּקַּחַת וְהַחֵרֶשֶׁת צְרִיכָה גֵּט. בָּא הַיָּבָם עַל הַחֵרֶשֶׁת וְחָזַר הוּא אוֹ אָחִיו וּבָא עַל הַפִּקַּחַת פָּסַל אֶת הַחֵרֶשֶׁת. וְהַחֵרֶשֶׁת יוֹצְאָה בְּגֵט. וְהַפִּקַּחַת בְּגֵט וּבַחֲלִיצָה:
29[The following rules apply if the deceased was married to] a mentally competent woman and a deaf-mute. If the yavam engaged in relations with the mentally competent woman, and then he or one of his brothers engages in relations with the deaf-mute, this does not disqualify the marriage to the mentally competent woman.64For her marriage was established through "acceptable relations." Even if the other wife of the deceased was mentally competent, relations with her would not disqualify the yavam's marriage to the first yevamah. The deaf-mute, however, must be divorced via a get.65Because the relations with her consecrated her. Nevertheless, continuing this marriage involves a prohibition.If the yavam first enters into relations with the deaf-mute, and then he or one of his brothers engages in relations with the mentally competent woman, this disqualifies the marriage to the deaf-mute.66Since the marriage to the mentally competent woman is binding according to Scriptural law, it supersedes the marriage to the deaf-mute. The deaf-mute must be divorced with a get, and the mentally competent woman should receive both a get and chalitzah.67She must be divorced, because the relations with the deaf-mute cause relations with her to be considered as "unacceptable relations." Therefore, she must receive a get to nullify the consecration brought about by the relations, and chalitzah to nullify her obligation to her yavam.
ל׳הָיוּ גְּדוֹלָה וּקְטַנָּה וּבָא עַל הַגְּדוֹלָה וְחָזַר הוּא אוֹ אָחִיו וּבָא עַל הַקְּטַנָּה לֹא פָּסַל הַגְּדוֹלָה וּמְלַמְּדִין אֶת הַקְּטַנָּה שֶׁתְּמָאֵן. בָּא עַל הַקְּטַנָּה וְחָזַר וּבָא הוּא אוֹ אָחִיו עַל הַגְּדוֹלָה. מְלַמְּדִין אֶת הַקְּטַנָּה שֶׁתְּמָאֵן וִיקַיֵּם הַגְּדוֹלָה שֶׁבְּעִילָתָהּ קוֹנָה קִנְיָן גָּמוּר:
30[The following rules apply if the deceased was married to] a woman past the age of majority and one below the age of majority. [If the yavam] first enters into relations with the woman past majority, and then he or one of his brothers engages in relations with the minor, this does not disqualify the marriage to the woman past majority.68For these are "acceptable relations." We should, however, instruct the minor to dissolve her marriage through mi'un.69Since the yavam entered into relations with the woman past majority first, he is not able to remain married to the minor. She should therefore dissolve her obligation to him through mi'un, rather than having her receive a get, because in this manner she is not disqualified from the priesthood.If he first enters into relations with the minor, and then he or one of his brothers engages in relations with the woman past majority, we should instruct the minor to dissolve her marriage through mi'un,70In this way, the minor dissolves all connection to the yavam, and there is no prohibition against his remaining married to the woman past majority. This option is preferred so that the yavam will have performed an act of yibbum that is binding according to Scriptural law. and he should remain married to the woman past majority. [The rationale is that] relations with her establish a fully binding marriage bond.