א׳
א׳מִצְוַת עֲשֵׂה מִן הַתּוֹרָה שֶׁיְּיַבֵּם אָדָם אֵשֶׁת אָחִיו מֵאָבִיו בֵּין מִן הַנִּשּׂוּאִין בֵּין מִן הָאֵרוּסִין אִם מֵת בְּלֹא זֶרַע שֶׁנֶּאֱמַר (דברים כה ה) ״וּבֵן אֵין לוֹ״ (דברים כה ה) ״יְבָמָהּ יָבֹא עָלֶיהָ״. וּמִן הַתּוֹרָה אֵין צָרִיךְ לְקַדֵּשׁ יְבִמְתּוֹ שֶׁזּוֹ אִשְׁתּוֹ הִיא שֶׁהִקְנוּ אוֹתָהּ לוֹ מִן הַשָּׁמַיִם אֶלָּא יָבוֹא עָלֶיהָ. וּכְתֻבָּתָהּ עַל נִכְסֵי בַּעְלָהּ שֶׁמֵּת:
1It is a positive commandment1Sefer HaMitzvot (Positive Commandment 216) and Sefer HaChinuch (Mitzvah 598) include this mitzvah as one of the 613 mitzvot of the Torah.In his Guide for the Perplexed, the Rambam explains that marriage of this nature was a custom carried out before the giving of the Torah (as reflected by Genesis 38:8 , and the Torah allowed this rite to be perpetuated. Sefer HaChinuch explains that the closeness shared with the deceased by both his widow and his brother enjoins them to come together and produce a child who will perpetuate the deceased's memory and virtue. As Sefer HaChinuch mentions, there are also profound mystic concepts associated with this mitzvah. of Scriptural law for a man to marry the widow of his paternal2Implied is an exclusion. One should not perform this rite with the widow of one's maternal brother (Yevamot 17b; Halachah 7 below). brother if he died without leaving children, as [Deuteronomy 25:5] states: "[And one of them dies] childless,... her husband's brother should cohabit with her." [This applies to a widow] from nisu'in, or from erusin.[The childless widow is referred to as a yevamah; the rite through which they marry, yibbum.]Scriptural law does not require a man to consecrate his yevamah, for she is his wife that heaven acquired for him. [All that is necessary] is that he cohabit with her. Her deceased husband's estate is responsible for her marriage contract.3See Hilchot Ishut 22:10-14.
ב׳לֹא רָצָה לְיַבֵּם אוֹ שֶׁלֹּא רָצְתָה הִיא. הֲרֵי זֶה חוֹלֵץ לָהּ וְאַחַר כָּךְ תִּהְיֶה מֻתֶּרֶת לְהִנָּשֵׂא לְאַחֵר. וּמִצְוַת עֲשֵׂה מִן הַתּוֹרָה לַחֲלֹץ אִם לֹא רָצָה לְיַבֵּם שֶׁנֶּאֱמַר (דברים כה ט) ״וְחָלְצָה נַעֲלוֹ״ וְגוֹ'. וּמִצְוַת יִבּוּם קוֹדֶמֶת לְמִצְוַת חֲלִיצָה:
2If the yavam does not want to perform the rite of yibbum, or if the woman does not consent,4According to the Rambam's conception, the woman cannot be compelled to marry her brother-in-law against her will. See Chapter 2, Halachah 10 and notes. he should [free her from this obligation through the rite of] chalitzah. [Only] afterwards is she permitted to marry another man.It is a positive commandment5Sefer HaMitzvot (Positive Commandment 217) and Sefer HaChinuch (Mitzvah 599) include this mitzvah as one of the 613 mitzvot of the Torah. of Scriptural law for [a brother] to perform chalitzah for [the deceased's widow], if he does not want to perform the rite of yibbum, as [Deuteronomy 25:9] states: "She shall... remove his shoe."6The woman also participates - indeed she plays a more active role - in the rite of chalitzah. Nevertheless, the mitzvah is considered to be incumbent on the brother of the deceased, because the effect of this mitzvah is that he foregoes a right - the right to marry the woman - that belongs to him. Until he performs chalitzah, the woman is bonded to him, and through performing chalitzah he severs this connection. Therefore, the mitzvah is considered his.Moreover, chalitzah is a means to dissolve the connection established by kiddushin. Since kiddushin are established by the man, chalitzah is also his initiative. See the Kovetz who questions whether the man is obligated to perform chalitzah or he merely has the opportunity of doing so.The mitzvah of yibbum takes precedence over the mitzvah of chalitzah.7The concluding mishnah of the first chapter of Bechorot states:The mitzvah of yibbum takes precedence over the mitzvah of chalitzah. [This applied] originally, when the participants [in the rite] intended to perform a mitzvah. In the present age, when they do not intend to perform a mitzvah, the mitzvah of chalitzah takes precedence over the mitzvah of yibbum.In his Commentary on the Mishnah, the Rambam explains that the Mishnah follows the opinion of Abba Shaul, who maintains that the prohibition against marrying one's brother's wife is not removed entirely by the mitzvah of yibbum. Instead, it is merely temporarily superseded. And therefore, if the couple have any intentions other than the fulfillment of the mitzvah, they transgress this prohibition. As such, rather than involve oneself in such a challenge, one should perform the mitzvah of chalitzah.In that commentary, and in a subsequent responsum, the Rambam explains that the halachah follows the opinion of the Sages who differ with Abba Shaul. These Sages maintain that when a man dies childless, the prohibition against his brother's marrying his wife is lifted entirely. Even if the brother marries the widow because of her looks, or because of her money, there is no prohibition involved. For that reason, the mitzvah of yibbum takes precedence.The Ashkenazic community, following the rulings of Rabbenu Tam and the authorities who succeeded him, do not accept this ruling and follow Abba Shaul's opinion. Accordingly, the Shulchan Aruch (Even HaEzer 165:1) quotes the Rambam's view, while the Ramah states that chalitzah is preferable, and that a couple should not be allowed to perform yibbum unless the court is certain that their intent is solely to perform the mitzvah.There is some discussion of the Rambam's intent by the commentaries, for his ruling in Hilchot Gerushin 10:16 implies a recognition of the importance of chalitzah. Nevertheless, the clarity of his statements in his Commentary on the Mishnah and in Sefer HaMitzvot makes it obvious that he follows the opinion of the Sages who differ with Abba Shaul. At present, even within the Sephardic community, the mitzvah of chalitzah is generally observed.[Note also the opinion of the Beit Shmuel 174:3, who states that even according to the Ashkenazic authorities, by Scriptural law yibbum takes precedence, and that the primacy given to chalitzah is a Rabbinic institution.]
ג׳זֶה שֶׁנֶּאֱמַר בַּתּוֹרָה (דברים כה ה) ״וּבֵן אֵין לוֹ״ אֶחָד הַבֵּן וְאֶחָד הַבַּת אוֹ זֶרַע הַבֵּן אוֹ זֶרַע הַבַּת הוֹאִיל וְיֵשׁ לוֹ זֶרַע מִכָּל מָקוֹם. וּבֵין מֵאִשָּׁה זוֹ בֵּין מֵאַחֶרֶת הֲרֵי זֶה פּוֹטֵר אֶת אִשְׁתּוֹ מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. אֲפִלּוּ הָיָה לוֹ זֶרַע מַמְזֵר אוֹ עוֹבֵד עֲבוֹדָה זָרָה הֲרֵי זֶה פּוֹטֵר אֶת אִשְׁתּוֹ מִן הַחֲלִיצָה וּמִן הַיִּבּוּם:
3The Torah's words [Deuteronomy 25:5], "When one of them dies childless" [should not be interpreted narrowly].8The Hebrew word בן, translated as "son," can also mean "child" or "descendant." Hence, the ruling mentioned by the Rambam. [When the deceased] has a son, a daughter, a descendant of a son, or a descendant of a daughter, as long as he has left progeny9If, however, a man fathered a child [or children], and he [they all] died in the father's lifetime, the man's wife is obligated to perform the rite of yibbum. - whether from the woman [to whom he is presently married] or from another woman, his wife is free from the obligation of chalitzah or yibbum.Even if he has a descendant who is illegitimate or an idolater, [that descendant] frees [the deceased's] wife from the obligation of chalitzah or yibbum.
ד׳אֲבָל בְּנוֹ מִן הַשִּׁפְחָה וּמִן הַכּוּתִית אֵינוֹ פּוֹטֵר אֶת אִשְׁתּוֹ שֶׁזֶּרַע הַבָּא מִן הַשִּׁפְחָה עֲבָדִים וְהַבָּא מִן כּוּתִית כּוּתִי וּכְאִלּוּ אֵינָם. הֲרֵי הוּא אוֹמֵר בְּשִׁפְחָה (שמות כא ד) ״הָאִשָּׁה וִילָדֶיהָ תִּהְיֶה לַאדֹנֶיהָ״ מְלַמֵּד שֶׁוְּלָדָהּ כְּמוֹתָהּ. וּבְכוּתִית הוּא אוֹמֵר (דברים ז ד) ״כִּי יָסִיר אֶת בִּנְךָ מֵאַחֲרַי״ מֵסִיר אוֹתוֹ מִלֵּחָשֵׁב בַּקָּהָל. וְאַף עַל פִּי שֶׁנִּשְׁתַּחְרֵר בְּנוֹ מִן הַשִּׁפְחָה אוֹ נִתְגַּיֵּר בְּנוֹ מִן הַכּוּתִית הֲרֵי הֵן כִּשְׁאָר הַגֵּרִים וְהַמְשֻׁחְרָרִין וְאֵינָם פּוֹטְרִין אֶת אִשְׁתּוֹ. הֲרֵי שֶׁהָיָה לוֹ בֵּן מִן הַשִּׁפְחָה שֶׁלּוֹ וְשִׁחְרְרוֹ וְשִׁחְרְרָהּ וּנְשָׂאָהּ וּמֵת בְּלֹא זֶרַע הֲרֵי זוֹ תִּתְיַבֵּם לְאָחִיו וְאַף עַל פִּי שֶׁבְּנָהּ מִמֶּנּוּ קַיָּם שֶׁכְּבָר שִׁחְרְרוֹ:
4[The above applies to children born from a Jewish woman.] If, however, [a deceased man] has a child born from a maidservant or a gentile woman, his wife is not free of these obligations. For the offspring of a maidservant are servants. And the offspring of a gentile woman are gentiles, and considered as if they have no connection to him.[These concepts are derived as follows:] With regard to a maidservant, [Exodus 21:4] states: "The woman and her children will belong to her master," teaching that her offspring have the same status as she.10Regardless of who the father is. And with regard to a gentile woman, [Deuteronomy 7:4] states: "They will lead your son away from Me" - i.e., prevent him from being considered part of the congregation.Even when a man's son born from a maidservant is freed, or his son born from a gentile woman converts, he is regarded in the same way as other converts or freed slaves and does not cause [the deceased's] wife to be freed [from the obligation of yibbum]. [Even when a man] fathered a son with a maidservant, freed the son and the mother, and married her - if he dies without fathering any other children, his wife should perform the rite of yibbum with his brother, although the son [whom the deceased] fathered is alive and has been freed.11See Hilchot Gerushin 10:19.
ה׳מִי שֶׁמֵּת וְהִנִּיחַ אִשְׁתּוֹ מְעֻבֶּרֶת. אִם הִפִּילָה אַחַר מוֹתוֹ הֲרֵי זוֹ תִּתְיַבֵּם. וְאִם יָלְדָה וְיָצָא הַוָּלָד חַי לַאֲוִיר הָעוֹלָם אֲפִלּוּ מֵת בְּשָׁעָה שֶׁנּוֹלַד הֲרֵי אִמּוֹ פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. אֲבָל מִדִּבְרֵי סוֹפְרִים עַד שֶׁיִּוָּדַע בְּוַדַּאי שֶׁכָּלוּ לוֹ חֳדָשָׁיו וְנוֹלַד לְתִשְׁעָה חֳדָשִׁים גְּמוּרִים. אֲבָל אִם לֹא נוֹדַע לְכַמָּה נוֹלַד. אִם חַי שְׁלֹשִׁים יוֹם הֲרֵי זֶה וְלַד קַיָּמָא וּפוֹטֵר נְשֵׁי אָבִיו מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. וְאִם מֵת בְּתוֹךְ הַשְּׁלֹשִׁים אֲפִלּוּ בְּיוֹם הַשְּׁלֹשִׁים בֵּין שֶׁמֵּת מֵחלִי בֵּין שֶׁנָּפַל מִן הַגַּג אוֹ אֲכָלוֹ אֲרִי הֲרֵי זֶה סָפֵק נֵפֶל סָפֵק בֶּן קַיָּמָא וּצְרִיכָה חֲלִיצָה מִדִּבְרֵי סוֹפְרִים. אֲבָל לֹא תִּתְיַבֵּם:
5[The following rules apply when a man] dies and leaves his wife pregnant: If she miscarries after he dies, his wife [is obligated to] perform the rite of yibbum. If she bore the child, and the fetus emerged into the world alive, the mother is free of the obligation to perform the rite of chalitzah or yibbum. This applies even when the child dies immediately after being born.According to Rabbinic decree, however, [this does not apply] unless it is known that the child was carried for a full term pregnancy and was born after nine full months had passed.12The Ramah (Even HaEzer 156:4) states that these laws apply as long as we know that the pregnancy lasted into the ninth month. If, however, the term of the pregnancy is unknown [the following rules apply]: If the child lives 30 days, the child is considered viable, and he frees his father's wives from the obligation of yibbum or chalitzah.If the child dies within 30 days [of his birth], even on the thirtieth day, there is a doubt whether the child is viable or non-viable. This applies regardless of [the cause of the infant's death], whether he died as a result of illness, fell from a roof or was eaten by a lion. According to Rabbinic law, [the deceased's wives] must perform the rite of chalitzah;13The Ramah (ibid.) rules that even if a fetus is stillborn, these laws still apply. they may not perform the rite of yibbum.14For according to Scriptural law, there is no obligation for yibbum, and the prohibition against relations with her husband's brother remains in force.
ו׳מִי שֶׁיֵּשׁ לוֹ אָח מִכָּל מָקוֹם אֲפִלּוּ מַמְזֵר אוֹ עוֹבֵד עֲבוֹדָה זָרָה בֵּין קָטָן בֵּין גָּדוֹל מִשֶּׁיָּצָא רֹאשׁוֹ וְרֻבּוֹ לַאֲוִיר הָעוֹלָם קֹדֶם שֶׁיָּמוּת אָחִיו הֲרֵי זֶה זוֹקֵק אֶת אִשְׁתּוֹ לְיִבּוּם. וְאִם הָיָה לוֹ אָח מִן הַשִּׁפְחָה אוֹ מִן הַכּוּתִית אֵינוֹ אָחִיו לְדָבָר מִן הַדְּבָרִים וְאֵינוֹ זוֹקֵק אֶת אִשְׁתּוֹ. וְאַף עַל פִּי שֶׁהָיְתָה לֵדָתוֹ בִּקְדֻשָּׁה הוֹאִיל וְהָיְתָה הוֹרָתוֹ שֶׁלֹּא בִּקְדֻשָּׁה אֵינוֹ אָחִיו:
6Whenever a man has a brother, even if the brother is illegitimate or an idolater, whether he is above the age of majority or below the age of majority,15In such an instance, the brother may not perform the rites of yibbum or chalitzah until he comes of age, as is explained below. as long as his head and the majority [of his body]16The Gur Aryeh notes that Hilchot Issurei Bi'ah 10:6 appears to imply that the emergence of an infant's forehead alone is sufficient for it to be considered having been "born." Hence, he interprets the Rambam's words as meaning either the forehead or the majority of the body. emerged into the world before his brother's death,17If, however, the brother is not born until after the man's death, the deceased's wife is not obligated to perform the rite of yibbum, as explained in Chapter 6, Halachah 16. his existence causes [his brother's wife] to be obligated to perform the rite of yibbum.18Needless to say, the woman should not marry the illegitimate man or the idolater. Instead, she should seek to be freed from her obligation through chalitzah.The Shulchan Aruch (Even HaEzer 157:4) and the Ramah mention the possibility of leniency, if the deceased's brother was an apostate at the time the deceased married his wife.If [the deceased] had a brother who was born to a maidservant or to a gentile woman, he is not considered to be his brother in any [halachic] context. [His existence] does not cause [his brother's wife] to be obligated to perform the rite of yibbum. Even when [the brother] was born as a member of the Jewish people,19I.e., the maidservant was freed, or the gentile woman was converted, before the baby was born. since his mother was not Jewish when he was conceived, he is not considered to be [the deceased's] brother.
ז׳אַחִים מִן הָאֵם אֵינָן חֲשׁוּבִין אַחִים (אֶלָּא לַאֲבֵלוּת וּלְעֵדוּת אֲבָל) לְעִנְיַן יְרֻשָּׁה אוֹ לְעִנְיַן יִבּוּם וַחֲלִיצָה הֲרֵי הֵן כְּמִי שֶׁאֵינָן. שֶׁאֵין אַחְוָה אֶלָּא מֵאָב:
7Maternal brothers are considered to be brothers only with regard to the laws of mourning20See Hilchot Aveilut 2:1. and the laws of witnesses.21See Hilchot Edut 13:1.With regard to the laws of inheritance,22See Hilchot Nachalot 1:6. and the laws of yibbum and chalitzah, [maternal brothers] are considered as if they did not exist. For fraternity is derived from the father alone.23Yevamot 17b derives this concept from Genesis 42:13: "We are twelve brothers, the son of one father."
ח׳גֵּרִים שֶׁנִּתְגַיְּרוּ וַעֲבָדִים שֶׁנִּשְׁתַּחְרְרוּ אֵין לָהֶן אַחְוָה כְּלָל וַהֲרֵי הֵן כְּזָרִים זֶה לָזֶה. וַאֲפִלּוּ אֶחָד מֵהֶם הוֹרָתוֹ שֶׁלֹּא בִּקְדֻשָּׁה וְלֵדָתוֹ בִּקְדֻשָּׁה וְהַשֵּׁנִי הוֹרָתוֹ וְלֵדָתוֹ בִּקְדֻשָּׁה הֲרֵי הֵן כְּזָרִים. וַאֲפִלּוּ תְּאוֹמִים וְנוֹלְדוּ בִּקְדֻשָּׁה אֵין בֵּינֵיהֶן אַחְוָה עַד שֶׁתְּהֵא הוֹרָתָן וְלֵדָתָן בִּקְדֻשָּׁה:
8There is no concept of fraternity among converts and freed slaves. [Thus, even two converts or two freed slaves born from the same father] are considered unrelated.24And therefore, one is not obligated to perform the rite of yibbum if his brother dies childless. Even if one of them was conceived before his parents were converted and born after they were converted, and the other was conceived and born after the parents were converted, they are not considered to have any family connection.Even if they are twins who were born after their parents were converted, they are not considered to be brothers25This ruling applies with regard to the laws of yibbum. With regard to the laws of forbidden relationships, by contrast, in Hilchot Issurei Bi'ah the Rambam rules that if one twin has relations with the other's wife, he is liable for transgressing the prohibition against relations with his brother's wife. unless they were also conceived after their parents converted.
ט׳מִי שֶׁהָיוּ לוֹ נָשִׁים רַבּוֹת וָמֵת. בִּיאָתָהּ אוֹ חֲלִיצָתָהּ שֶׁל אַחַת מֵהֶן פּוֹטֶרֶת אֶת הַשְּׁאָר וְאֵינוֹ מְיַבֵּם לִשְׁתַּיִם שֶׁנֶּאֱמַר (דברים כה ט) ״אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו״ בַּיִת אֶחָד הוּא בּוֹנֶה וְאֵינוֹ בּוֹנֶה שְׁנֵי בָּתִּים. וְכֵן אִם הָיוּ לוֹ אַחִים רַבִּים אֶחָד מֵהֶן חוֹלֵץ אוֹ מְיַבֵּם לְאַחַת מִן הַיְבָמוֹת וְיֻתְּרוּ שְׁאָר הַצָּרוֹת:
9When a man who has many wives dies, [a brother who] engages in relations or performes the rite of chalitzah with one of them frees the others from all obligations. [The deceased's brother] may not marry two [of the deceased's wives], as [implied by Deuteronomy 25:9]: "...who did not build his brother's house." [This is interpreted as an exclusion:] he may build one house, but not two houses.26As reflected in Halachah 12, there is a prohibition involved.Similarly, if [the deceased had many brothers, one of them should perform either the rite of chalitzah or yibbum with one of the widows. This frees the others of all obligations.
י׳הָיוּ בִּיבָמוֹת אֵלּוּ כְּשֵׁרוֹת לִכְהֻנָּה וּפְסוּלוֹת. אִם הָיָה מְיַבֵּם מְיַבֵּם לְאֵי זוֹ שֶׁיִּרְצֶה. וְאִם הָיָה חוֹלֵץ יַחֲלֹץ לַפְּסוּלָה כְּדֵי שֶׁלֹּא יִפְסל אֶת הַכְּשֵׁרָה לִכְהֻנָּה בַּחֲלִיצָה:
10[The following rules apply if] the widows include some who are fit to marry into the priesthood, and some who are not fit to marry into the priesthood: If [the brother] desires to perform the rite of yibbum, he may choose any of the widows that he desires. If he desires to perform the rite of chalitzah, he should perform this rite with one of the wives who is already forbidden to the priesthood, so that he will not disqualify one of the women who may marry into the priesthood through the rite of chalitzah.27Our Sages forbade a priest from marrying a woman who performed the rite of chalitzah (Hilchot Ishut 1:7). Since it makes no difference to the brother with which widow he performs the rite of chalitzah, our Sages counsel that it be performed in a manner that does not damage a woman's future possibilities. See Yevamot 44a.A court should enforce the application of this law (Beit Shmuel 161:2).
י״אמֵתוּ לוֹ אַחִין רַבִּים וְנָפְלוּ נְשׁוֹתֵיהֶן לְפָנָיו. אִם אֶפְשָׁר לוֹ לְיַבֵּם אֶת כֻּלָּן מְיַבֵּם וְאִם לָאו חוֹלֵץ. אוֹ חוֹלֵץ לְמִי שֶׁיִּרְצֶה מֵהֶן וּמְיַבֵּם לְמִי שֶׁיִּרְצֶה אַחַת מִכָּל בַּיִת וּבַיִת:
11[The following rules apply if] many [of a man's] brothers die and he [becomes obligated to perform the rite of yibbum or chalitzah] to [all] their wives: If it is possible for him to perform the rite of yibbum with all of them,28I.e., if he is capable of meeting the responsibilities a husband has - providing for his wife's livelihood, her clothing and her conjugal rights. he should. If not, he may perform chalitzah with all of them, or perform chalitzah with whomever he desires, or perform yibbum with whomever he desires, [choosing one of the widows] from each [of his deceased brother's] households.
י״בהַכּוֹנֵס אֶת יְבִמְתּוֹ נֶאֶסְרוּ צָרוֹתֶיהָ עָלָיו וְעַל שְׁאָר הָאַחִין וְאִם בָּא הוּא אוֹ אֶחָד מֵהָאַחִין עַל צָרָתָהּ הֲרֵי זֶה עוֹבֵר בַּעֲשֵׂה שֶׁנֶּאֱמַר (דברים כה ה) ״יְבָמָהּ יָבֹא עָלֶיהָ״ וְלֹא עָלֶיהָ וְעַל צָרָתָהּ וְלָאו הַבָּא מִכְּלַל עֲשֵׂה עֲשֵׂה. וְכֵן הַחוֹלֵץ לִיבִמְתּוֹ נֶאֶסְרָה הַחֲלוּצָה הִיא וְכָל צָרוֹתֶיהָ עַל הַחוֹלֵץ וְעַל שְׁאָר אַחִין. וְכֻלָּן אֲסוּרוֹת עֲלֵיהֶן מִדִּבְרֵי סוֹפְרִים כִּשְׁנִיּוֹת. שֶׁמֵּאַחַר שֶׁמֵּת אָחִיו בְּלֹא וָלָד נִסְתַּלֵּק אִסּוּר עֶרְוָה מֵעַל כָּל נָשָׁיו לְפִיכָךְ תּוֹפְסִין בָּהֶן הַקִּדּוּשִׁין כִּשְׁנִיּוֹת:
12When [a yavam] marries a yevamah, all the other widows from that household become forbidden to him and to his other brothers. If he or his other brothers have relations with one of the other widows, they transgress a positive commandment, for [Deuteronomy 25:9] states: "Her yavam will engage in relations with her." [This is interpreted to mean:] With her, and not with another woman from that household. A prohibition stemming from a positive commandment is considered to be a positive commandment.29A person who transgresses a positive commandment is not liable to receive the forty lashes given when a negative commandment of the Torah is violated. Hence, the Rambam clarifies that although a prohibition is involved, it is a prohibition stemming from a positive commandment, and not one stemming from a negative commandment.Similarly, when [one of the brothers] performs chalitzah with his yevamah, the woman with whom chalitzah was performed and all the other widows from that household become forbidden to [the brother who] performed chalitzah and to the other brothers. They are all forbidden to the brothers by Rabbinic decree,30The Ramban (Nachmonides, Hasagot L'Sefer HaMitzvot, Hosafot Negative Commandment 14) differs and maintains that the violation of a Scriptural prohibition is involved. The difference between their opinions stems from their interpretation of Yevamot 10b.That passage interprets Deuteronomy 25:9: "... who did not build his brother's house," as implying a prohibition. "Once he did not build it, he no longer has the right to build it." The Ramban follows the authorities who maintain that this is a Scriptural prohibition, while the Rambam (based on Yevamot 40b) maintains that the prohibition is Rabbinic in origin, and the reference to the verse is merely an asmachta, a support. sharing the status of sh'niyot.31Literally, "prohibitions of a second degree," relatives with whom relations are permitted by Scriptural law, but forbidden by Rabbinic decree. See Hilchot Ishut 1:6. [This is the only prohibition involved,] for since their brother died childless, the severe prohibition against sexual relations (issur ervah) is removed. Therefore, [if one of the brothers consecrates such a woman,] the consecration is binding, as it would be if he consecrated one of the sh'niyot.
י״גהַחוֹלֵץ לִיבִמְתּוֹ כְּשֵׁם שֶׁהִיא אֲסוּרָה עָלָיו כָּךְ קְרוֹבוֹתֶיהָ אֲסוּרוֹת עָלָיו. כְּגוֹן אִמָּהּ וּבִתָּהּ. וְכֵן הִיא אֲסוּרָה לִבְנוֹ וּלְאֶחָיו. וַאֲפִלּוּ שְׁנִיּוֹת שֶׁלָּהּ אֲסוּרוֹת כְּגוֹן בַּת בַּת בִּתָּהּ. וְכֵן הִיא אֲסוּרָה לְבֶן בֶּן בְּנוֹ. כְּלָלוֹ שֶׁל דָּבָר הֲרֵי הִיא כְּאִשְׁתּוֹ שֶׁגֵּרְשָׁהּ. וְכֵן אִם מֵתָה יְבִמְתּוֹ וַעֲדַיִן הִיא זְקוּקָה לוֹ אָסוּר בִּקְרוֹבוֹתֶיהָ כְּאִלּוּ הָיְתָה אִשְׁתּוֹ וּמֵתָה תַּחְתָּיו. וְכָל הָאִסּוּרִין הָאֵלּוּ מִדִּבְרֵיהֶן. וּמֻתָּר אָדָם לִשָּׂא אֲחוֹת צָרַת חֲלוּצָתוֹ וּשְׁאָר קְרוֹבוֹתֶיהָ:
13When a person performs the rite of chalitzah with his yevamah, not only does she become forbidden to him, but her relatives32This refers to seven women who are included in the category of arayot and with whom sexual relations are forbidden, as mentioned in Leviticus, Chapter 18, and Hilchot Issurei Bi'ah 2:7,9. They include her mother, both her maternal and paternal grandmothers, her daughter, the daughter of her son, the daughter of her daughter and her sister. - e.g., her mother and her daughter - also become forbidden. Similarly, she is forbidden to marry his son and his brother.33I.e., even a brother who was not born during the lifetime of the widow's husband. Even the sh'niyot - e.g., her daughter's granddaughter - related to her are forbidden to him, and she is forbidden to his son's grandson. To summarize: Her status is like that of a divorced wife.Similarly, if his yevamah dies while she is still under obligation to him,34I.e., before she performs either yibbum or chalitzah. he is forbidden to marry these relatives of hers, as if she were his wife and she died in his lifetime.35He is, however, permitted to marry the woman's sister, just as he is allowed to marry his wife's sister after her death. All these prohibitions are of Rabbinic origin.[If the deceased had two wives, his brother] may marry the sister of the wife with whom he did not perform the rite of chalitzah, or any other of her relatives.36Although the woman herself is forbidden, as stated in the previous halachah, her relatives are permitted.
י״דאָסוּר לְיָבָם לִשָּׂא קְרוֹבַת זְקוּקָתוֹ כְּגוֹן אִמָּהּ אוֹ בִּתָּהּ עַד שֶׁיְּיַבֵּם אֶחָד מֵאֶחָיו לָהּ אוֹ יַחֲלֹץ לָהּ וְתָסוּר זִקָּתוֹ מֵעָלֶיהָ וְיִשָּׂא אִמָּהּ אוֹ בִּתָּהּ אוֹ שְׁאָר קְרוֹבוֹתֶיהָ. אַף עַל פִּי שֶׁהֵן כֻּלָּן אֲסוּרוֹת עַל אָחִיו שֶׁחָלַץ אוֹ יִבֵּם כְּמוֹ שֶׁבֵּאַרְנוּ:
14It is forbidden for a man to marry a close relative of a woman with whom he is obligated to perform either yibbum or chalitzah - e.g., her mother or her daughter - until one of his brothers performs yibbum with the woman who is obligated, or performs chalitzah with her to free her of her obligation.37See Chapter 7, Halachah 8.Afterwards, [the other brother] may marry the woman's mother, daughter, or any of her other relatives, despite the fact that these relatives are all forbidden to the brother who performed either yibbum or chalitzah, as explained [in the previous halachah].
ט״והַכּוֹנֵס אֶת יְבִמְתּוֹ וְגֵרְשָׁהּ אִם רָצָה לְהַחֲזִיר יַחֲזִיר מִפְּנֵי שֶׁהִיא אִשְׁתּוֹ לְכָל דָּבָר וְלֹא נִשְׁאַר עָלֶיהָ שֵׁם אִסּוּר מִפְּנֵי אָחִיו כְּלָל לֹא מִדִּבְרֵי תּוֹרָה וְלֹא מִדִּבְרֵי סוֹפְרִים:
15When a man marries his yevamah and then divorces her, he may remarry her if he so desires. She is considered to be his wife with regard to all matters. There remains no trace of the prohibition [that existed when she was] his brother's [wife], neither from Scriptural law nor from Rabbinic law.38I.e., we do not say that he has already fulfilled the mitzvah of yibbum, and now the woman's status reverts to the prohibition under which she was previously forbidden. See Yevamot 39a.
ט״זכְּבָר בֵּאַרְנוּ בְּהִלְכוֹת אִישׁוּת שֶׁבֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד בִּיאָתוֹ בִּיאָה וְדָבָר זֶה הֲלָכָה מִפִּי הַקַּבָּלָה. לְפִיכָךְ יָבָם קָטָן שֶׁבָּא עַל יְבִמְתּוֹ אִם הָיָה בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד יְקַיֵּם. אֲבָל אֵינוֹ חוֹלֵץ עַד שֶׁיִּגְדַּל וְיִבָּדֵק שֶׁהֲרֵי (דברים כה ז) ״אִישׁ״ כָּתוּב בַּפָּרָשָׁה לְעִנְיַן חֲלִיצָה. וְאִם הָיָה פָּחוֹת מִזֶּה אֵין בִּיאָתוֹ בִּיאָה. וּבִיאַת בֶּן תֵּשַׁע שָׁנִים אֵינָהּ קוֹנָה קִנְיָן גָּמוּר. לְפִיכָךְ אֵין יְבִמְתּוֹ נִתֶּרֶת לְזָר עַד שֶׁיָּבוֹא עָלֶיהָ אַחַר שֶׁיִּגְדַּל אוֹ עַד שֶׁתַּחֲלֹץ כְּמוֹ שֶׁיִּתְבָּאֵר:
16As explained in Hilchot Ishut,39Chapter 11, Halachah 3. the sexual relations in which a boy of nine years and one day engages are halachically significant. This is a law received through the Oral Tradition.Accordingly, when a yavam who is below the age of majority, but over the age of nine, engages in sexual relations with his yevamah, he should maintain [his bond with her].40I.e., none of the other brothers should marry her instead. See Chapter 5, Halachot 18-19. He may not, however, perform the rite of chalitzah until he attains the age of majority and is inspected [for signs of physical maturity].41Two pubic hairs, as stated in Hilchot Ishut 2:10. For with regard to chalitzah, the term ish ("man") is specifically mentioned in the Torah.42Deuteronomy 25:7 states: "If the man does not desire...."If [a yavam] is below this age, sexual relations in which he engages are of no halachic significance. [Moreover,] even the sexual relations in which a nine-year-old engages do not acquire [the yevamah for him in a manner that is] binding [entirely].43Rather, these sexual relations are considered to be equivalent to a ma'amar, the status of which is discussed in Chapter 2, Halachah 1. Therefore, his yevamah is not permitted to marry another man until he engages in relations with her after he attains majority [and divorces her], or performs the rite of chalitzah [at that age], as will be explained.44See Chapter 5, Halachah 21, where this situation is described in detail.
י״זוְכֵן הַיְבָמָה הַקְּטַנָּה אִם רָצָה הַיָּבָם לְיַבֵּם אוֹתָהּ מְיַבֵּם אֲבָל אֵינָהּ חוֹלֶצֶת עַד שֶׁתַּגְדִּיל וְתִבָּדֵק. וַאֲפִלּוּ נִבְעֲלָה אַחַר י״ב שָׁנָה אֵינָהּ חוֹלֶצֶת עַד שֶׁתִּבְדֹּק וְיִמְצְאוּ בָּהּ הַסִּימָנִין:
17Similarly, with regard to a yevamah who is below the age of majority: If her yavam desires to perform the rite of yibbum with her, he may.45Yevamot 119a explains that there is a certain dimension of leniency implied by this ruling. Since the woman is below the age of majority, it is possible that as she grows older she will manifest signs of being an aylonit, a woman who lacks female sexual characteristics (Hilchot Ishut 2:3,6). If that were to be the case, then the mitzvah of yibbum would not apply to such a woman, as stated in Chapter 6, Halachah 8, and relations with her would still be forbidden. Nevertheless, since the overwhelming probability is that a woman will not be an aylonit, our Sages did not impose any restrictions. He may not, however, perform the rite of chalitzah with her until she attains the age of majority and is inspected [for physical signs of maturity]. Even if she engaged in sexual relations after she became twelve years old,46Rav David Arameah interprets this to be referring to engaging in relations with her previous husband before her death. Although with regard to her husband, we assume that she has manifested signs of physical maturity, as stated in Hilchot Gerushin 11:5, with regard to the laws of yibbum and chalitzah an inspection is required. Note an alternative explanation offered by the Or Sameach. she may not perform the rite of chalitzah until she undergoes an inspection and manifests signs of physical maturity.
י״חכְּשֵׁם שֶׁאֵין הַיָּבָם חוֹלֵץ עַד שֶׁיֵּעָשֶׂה אִישׁ כָּךְ אֵין הַיְבָמָה חוֹלֶצֶת עַד שֶׁתֵּעָשֶׂה אִשָּׁה גְּדוֹלָה. וְיָבָם קָטָן שֶׁבָּא עַל יְבָמָה קְטַנָּה יִגְדְּלוּ זֶה עִם זֶה:
18Just as a yavam may not perform chalitzah until he attains manhood, so too, a yevamah may not perform chalitzah until she attains womanhood.47See Chapter 6, Halachah 6.When a yavam who is below the age of majority engages in sexual relations with a yevamah who is also below the age of majority, they should grow up together.
י״טהַיְבָמָה לֹא תִּתְיַבֵּם וְלֹא תַּחֲלֹץ עַד שֶׁתַּמְתִּין תִּשְׁעִים יוֹם חוּץ מִיּוֹם הַמִּיתָה וּמִיּוֹם הַיִּבּוּם וּמִיּוֹם הַחֲלִיצָה כִּשְׁאָר כָּל הַנָּשִׁים. וּמִפְּנֵי מָה לֹא תַּחֲלֹץ בְּתוֹךְ תִּשְׁעִים יוֹם מִפְּנֵי שֶׁאֵינָהּ רְאוּיָה לְיִבּוּם וְנֶאֱמַר (דברים כה ז) ״אִם לֹא יַחְפֹּץ הָאִישׁ לָקַחַת אֶת יְבִמְתּוֹ״ (דברים כה ט) ״וְחָלְצָה נַעֲלוֹ״ וְגוֹ' בְּעֵת שֶׁהִיא עוֹלָה לְיִבּוּם עוֹלָה לַחֲלִיצָה וְכָל זְמַן שֶׁאֵינָהּ עוֹלָה לְיִבּוּם אֵינָהּ עוֹלָה לַחֲלִיצָה. וְאִם יִבֵּם אוֹתָהּ אוֹ חָלַץ בְּתוֹךְ הַשְּׁלֹשָׁה חֳדָשִׁים הוֹאִיל וְאֵינָהּ מְעֻבֶּרֶת הֲרֵי זוֹ נִפְטְרָה וְאֵינָהּ צְרִיכָה כְּלוּם:
19As all other women,48See Hilchot Gerushin 11:18, which prohibits a widow or a divorcee from remarrying within 90 days of her husband's death or their divorce, to preclude the possibility of questions arising concerning who is the father of her child. a yevamah should not perform either yibbum or chalitzah until she waits a 90-day interval. [These 90 days] do not include the day of her previous husband's death or the day of yibbum or chalitzah.Why may she not perform chalitzah within these 90 days?49For performing chalitzah will not prevent the determination of a child's father. Because she is not fit to perform yibbum [at that time]. [Deuteronomy 25:7-9] states: "And if the man does not desire to take his yevamah,... she should remove his shoe" [establishing an equivalence between these two rites]. [Thus,] when she is fit to perform yibbum, she is fit to perform chalitzah. And when she is not fit to perform yibbum, she is not fit to perform chalitzah.50The converse of this principle - that one who does not perform chalitzah (e.g., a king) does not perform yibbum - also applies. See the Rambam's Commentary on the Mishnah, Sanhedrin 2:1 and Hilchot Melachim 2:3).Should [a brother] perform yibbum or chalitzah with her within these three months, since she is not pregnant, she has discharged her obligation and need not perform any further activity.51The Ramah (Even HaEzer 164:1) differs and maintains that such a woman requires chalitzah from her deceased husband's other brothers after the three months have passed. See also Beit Shmuel 164:4.
כ׳הַחוֹלֵץ לִיבִמְתּוֹ וְנִמְצֵאת מְעֻבֶּרֶת וְיָלְדָה. אִם הָיָה וָלָד שֶׁל קַיָּמָא הֲרֵי זוֹ כְּמִי שֶׁלֹּא נֶחְלְצָה לוֹ מֵעוֹלָם וּמֻתֶּרֶת לִכְהֻנָּה וּמֻתָּר בִּקְרוֹבוֹתֶיהָ. וְאִם הִפִּילָה אוֹ שֶׁלֹּא שָׁהָה שְׁלֹשִׁים יוֹם אַחַר שֶׁנּוֹלַד חוֹזֵר וְחוֹלֵץ לָהּ הוּא אוֹ אֶחָד מֵאֶחָיו. שֶׁחֲלִיצַת הַמְעֻבֶּרֶת אֵינָהּ חֲלִיצָה וּבִיאַת הַמְעֻבֶּרֶת אֵינָהּ יִבּוּם:
20[The following rules apply when a brother] performs chalitzah with his yevamah, and afterwards it is discovered that she is pregnant: If she gives birth and the child is viable, it is considered as if she had never performed chalitzah. She is permitted to [marry into the] priesthood, and [the brother who performed chalitzah with her] is permitted [to marry] her relatives.If the woman miscarries, or if the child who is born does not live for 30 days after being born, this - or another - brother52The Ramah (Even HaEzer 164:2) states that the chalitzah should be performed by another brother, and not by the brother who had originally performed chalitzah with her. should perform chalitzah with her again. For chalitzah performed with a pregnant woman is not considered chalitzah,53See Chapter 4, Halachah 26.The Beit Shmuel 164:5 quotes the view of Tosafot, who maintain that, according to Rabbinic law, performing chalitzah while pregnant disqualifies a woman from marrying into the priesthood and prevents her from performing yibbum if she miscarries. nor are relations with a pregnant woman considered yibbum.
כ״אלְפִיכָךְ הַכּוֹנֵס אוֹ הַחוֹלֵץ לִיבִמְתּוֹ הַמְעֻבֶּרֶת לֹא תִּנָּשֵׂא צָרָתָהּ עַד שֶׁתֵּלֵד זוֹ. שֶׁאֵין הַוָּלָד מַתִּיר עַד שֶׁיֵּצֵא לַאֲוִיר הָעוֹלָם:
21Therefore, when [a man] marries or performs chalitzah with his yevamah who is pregnant, another woman who was married to the deceased husband should not remarry until this woman gives birth. For a child does not remove [the obligation of yibbum] until it emerges into the world.54And the yibbum or the chalitzah performed by the woman is of no consequence whatsoever.
כ״בהַכּוֹנֵס אֶת יְבִמְתּוֹ וְנִמְצֵאת מְעֻבֶּרֶת מַפְרִישִׁין אוֹתָן וּמַמְתִּינִין לָהּ. אִם הִפִּילָה יַחֲזֹר וִיקַיֵּם. וְאִם יָלְדָה אֲפִלּוּ מֵת בַּיּוֹם שֶׁנּוֹלַד הֲרֵי זֶה מוֹצִיאָהּ בְּגֵט וְחוֹלֵץ לָהּ וְאַחַר כָּךְ תִּהְיֶה מֻתֶּרֶת לַאֲחֵרִים. וְאִם נִתְקַיֵּם הַוָּלָד שְׁלֹשִׁים יוֹם אַחַר שֶׁנּוֹלַד הֲרֵי זֶה וָלָד שֶׁל קַיָּמָא וְאֵינָהּ צְרִיכָה מִמֶּנּוּ גֵּט מִפְּנֵי שֶׁהִיא עֶרְוָה עָלָיו:
22[The following laws apply when a yavam] marries his yevamah, and then she is discovered to be pregnant. They should be separated [immediately],55Lest she give birth, in which case she would be forbidden to the yavam. and we wait [to see the results of] her pregnancy. If she miscarries, he should maintain her as his wife.56The Ramah (Even HaEzer 164:5) states that this rule applies only if he marries her before her pregnancy is discovered. If he marries her after her pregnancy is discovered, their relationship should be terminated even if she miscarries.If she gives birth [different rules apply]: If the child dies, even on the day it was born, the yavam should divorce her, [give her] a get and perform chalitzah with her.57The divorce is necessary lest it appear that a married couple are separating without a divorce, and the chalitzah is necessary as explained in Halachah 5. (See also Chapter 2, Halachah 21.) [Only] then, is she permitted to marry another man. If the child lives for 30 days after its birth,58The Maggid Mishneh states that the same law applies if the child is born with its limbs properly formed after a full-term pregnancy, even if he dies on the day of birth. This ruling is quoted by the Ramah (Even HaEzer 164:6). [the child] is considered to be viable, and there is no need for a divorce, for [relations between the two are forbidden by] a severe prohibition].59She does not require a get, because everyone knows that the consecration of such a woman is not binding.
כ״גיָלְדָה לְאַחַר שִׁשָּׁה חֳדָשִׁים מִשֶּׁנִּתְיַבְּמָה וָלָד שֶׁל קַיָּמָא הֲרֵי זֶה הַוָּלָד סָפֵק אִם בֶּן תִּשְׁעָה לָרִאשׁוֹן אִם בֶּן שִׁבְעָה לָאַחֲרוֹן לְפִיכָךְ יוֹצִיא בְּגֵט וְהַוָּלָד כָּשֵׁר. וְאִם בָּא עָלֶיהָ אַחַר שֶׁיָּלְדָה הַבָּנִים שֶׁיָּבֹאוּ אַחֲרָיו סָפֵק מַמְזֵרִים:
23If she gives birth to a viable child six months after she performed yibbum, there is a doubt whether this child is the son of her first husband and was born after a nine-month pregnancy, or is the son of her [yavam] and was born after a six-month pregnancy. Therefore, [the yavam] should divorce his wife, giving her a get. The child is not, however, considered illegitimate.60For whether he is the son of the woman's first husband or the son of her second husband, no sin was committed in his conception.If [the yavam] has relations with her after she gives birth, the children that are born afterwards are considered to be of doubtful legitimacy.61For we are unsure whether or not the woman is permitted to remain married to her yavam. The laws governing a person of doubtful legitimacy are discussed in Hilchot Issurei Bi'ah 15:21-22.
ב׳
א׳מִדִּבְרֵי סוֹפְרִים שֶׁלֹּא יָבֹא הַיָּבָם עַל יְבִמְתּוֹ עַד שֶׁיְּקַדֵּשׁ אוֹתָהּ בִּפְנֵי שְׁנֵי עֵדִים בִּפְרוּטָה אוֹ בִּשְׁוֵה פְּרוּטָה וְזֶהוּ הַנִּקְרָא מַאֲמָר. וְאֵין הַמַּאֲמָר קוֹנֶה בַּיְבָמָה קִנְיָן גָּמוּר כְּמוֹ הַבִּיאָה. וְהָעוֹשֶׂה מַאֲמָר בִּיבִמְתּוֹ שֶׁלֹּא מִדַּעְתָּהּ לֹא עָשָׂה כְּלוּם שֶׁאֵין הָאִשָּׁה מִתְקַדֶּשֶׁת אֶלָּא לִרְצוֹנָהּ. וּקְטַנָּה מִן הָאֵרוּסִין אֵין עוֹשִׂין בָּהּ מַאֲמָר אֶלָּא מִדַּעַת אָבִיהָ:
1It is a Rabbinic ordinance that a yavam should not enter into marital relations with his yevamah until he consecrates her in the presence of two witnesses, with a p'rutah or an article worth a p'rutah.1A ma'amar can also be effected with a sh'tar, a legal document (Maggid Mishneh).From Yevamot 52a it would appear that this practice was instituted as an expression of modesty. Just as with regard to marriage, although it is acceptable to consecrate a woman through sexual relations according to Scriptural law, our Rabbis ordered a ban of ostracism to be placed on a person who does so; so too, with regard to yibbum, they required that the man designate the woman as his wife before entering into marital relations with her. This [act] is called a ma'amar.2The word ma'amar means "statement." The Tosefot Yom Tov explains that the term was chosen because the yavam must make a statement of intent. Rav Kapach offers an alternative interpretation, citing Deuteronomy 26:17,18, which uses the root אמר to mean "designate," or "declare allegiance to."A ma'amar does not complete the acquisition of a yevamah, as will be explained.3See Chapter 5, Halachot 2-3.The standard printed text of the Mishneh Torah continues "as does sexual relations." Nevertheless, authoritative manuscripts and early printings of the Mishneh Torah do not contain this addition. Based on that version, Rav Kapach explains that the comparison may be, not to sexual relations with a yevamah, but rather to the effectiveness of the transfer of money in ordinary kiddushin.When [a yavam] performs a ma'amar with his yevamah without her knowledge, his deed is of no consequence. For a woman can be consecrated only willingly.4See Hilchot Ishut 4:1. When a minor is widowed after being merely consecrated,5If the minor's marriage is consummated, she leaves her father's authority and acts independently. As long as she is merely consecrated, however, she is under her father's authority. See Hilchot Ishut 3:11-12. a ma'amar can be performed only with the consent of her father.
ב׳וּכְשֵׁם שֶׁהוּא מְקַדֵּשׁ אֶת יְבִמְתּוֹ כָּךְ הוּא מְבָרֵךְ בִּרְכַּת נִשּׂוּאִין בַּעֲשָׂרָה וְכוֹתֵב כְּתֻבָּה כְּדִין כָּל נוֹשֵׂא אִשָּׁה. הַבָּא עַל יְבִמְתּוֹ וְלֹא עָשָׂה בָּהּ מַאֲמָר קָנָה קִנְיָן גָּמוּר וְאֵינוֹ צָרִיךְ לַחֲזֹר וּלְקַדֵּשׁ אַחַר הַבְּעִילָה. וּמַכִּין אוֹתוֹ מַכַּת מַרְדּוּת. וְכוֹתֵב לָהּ כְּתֻבָּה:
2Just as [the yavam] must consecrate his yevamah, so too, he should recite the marriage blessings in the presence of ten men6See Hilchot Ishut 10:3 for the text of these blessings. The Ramah (Even HaEzer 166:2) states that the ceremony of chuppah should also be performed, and the Ma'aseh Rokeach adds that Birkat Erusin (Hilchot Ishut 3:23) should be recited. and compose a ketubah ("marriage contract"), as is required of any man who marries a woman.7The text of the ketubah to be composed by the yavam appears in Chapter 4, Halachah 32.When [a yavam] enters into marital relations with his yevamah without previously performing a ma'amar with her, he acquires her in a binding manner;8The fact that he disobeyed our Sages' wishes does not cause his deed to lose its effectiveness. he does not have to consecrate her after engaging in marital relations with her. He should be given stripes for rebellious conduct9The punishment given for disobeying a Rabbinic ordinance. See Hilchot Ishut 3:21. and should write a ketubah for her.
ג׳הַבָּא עַל יְבִמְתּוֹ בֵּין בְּשׁוֹגֵג בֵּין בְּמֵזִיד בֵּין בְּאֹנֶס בֵּין בְּרָצוֹן. בֵּין שֶׁהָיָה הוּא מֵזִיד וְהִיא שׁוֹגֶגֶת אוֹ אֲנוּסָה. בֵּין שֶׁהָיְתָה הִיא מְזִידָה וְהוּא שׁוֹגֵג אוֹ אָנוּס. בֵּין שֶׁהָיְתָה יְשֵׁנָה בֵּין שֶׁהָיְתָה עֵרָה (בֵּין שֶׁבָּא עָלֶיהָ כְּדַרְכָּהּ בֵּין שֶׁלֹּא כְּדַרְכָּהּ). אֶחָד הַמְעָרֶה וְאֶחָד הַגּוֹמֵר קָנָה:
3When [a yavam] engages in marital relations with his yevamah, he acquires her [as his wife]. [This applies] regardless of whether he entered into these relations unintentionally10Note the Shulchan Aruch (Even HaEzer 166:9), which cites a minority opinion that differentiates between whether the yevamah had been married to her first husband or merely consecrated by him. In the latter instance, she must be consecrated a second time. or with a licentious intent,11Our translation is based on Rashi's gloss, Yevamot 53b. under duress or willingly, whether he acted with a licentious intent and she acted unintentionally or under duress, or she acted with a licentious intent and he acted unintentionally or under duress, whether she was asleep12Although it is improper for a husband to engage in relations with his wife when she is asleep, this does not negate the effectiveness of the yavam's act. or awake, whether he performed vaginal or anal intercourse,13The purpose of yibbum is to "perpetuate the name of his brother" (Deuteronomy 25:7 - i.e., to conceive progeny. Although this objective cannot be achieved through anal intercourse, it is still an effective means of acquisition. Since both the man and the woman are capable of conceiving children, the fact that they cannot accomplish that through this sexual act does not detract from its effectiveness (Beit Shmuel 166:6). whether he inserted merely the head of his penis or the entire organ.14Our translation is based on Hilchot Issurei Bi'ah 1:10.
ד׳בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁנִּתְכַּוֵּן לִבְעל אֲבָל (אִם נָפַל מִן הַגַּג וְנִתְקַע בָּהּ אוֹ) שֶׁבָּא עָלֶיהָ שִׁכּוֹר שֶׁאֵינוֹ מַכִּיר כְּלוּם אוֹ יָשֵׁן לֹא קָנָה. נִתְכַּוֵּן לְדָבָר אַחֵר וְהֵטִיחַ בִּיבִמְתּוֹ לֹא קָנָה. לְהָטִיחַ בִּבְהֵמָה וְהֵטִיחַ בִּיבִמְתּוֹ קָנָה שֶׁהֲרֵי נִתְכַּוִּן לְשׁוּם בְּעִילָה מִכָּל מָקוֹם:
4When does the above apply? When [the yavam] intends to perform a sexual act. If, however, he fell from the roof [with an erection] and [accidentally] inserted his organ into his yevamah, had relations with her when he was so intoxicated that he was not conscious of anything,15Note the Or Sameach, who questions this ruling based on the Jerusalem Talmud (Yevamot 6:1, quoted by the Rambam in Chapter 6, Halachah 3), which states that when a mentally incompetent person performs yibbum, his act is binding. The Or Sameach explains that a mentally incompetent person may have the intent to engage in sexual relations. In this instance, however, the person has lost control of his faculties to the extent that he has no intent whatsoever. or when he was asleep, he does not acquire her [as his wife].If he intended to masturbate in a hole in the wall and unintentionally inserted his organ into his yevamah, he does not acquire her [as his wife].16For masturbation is not considered to be sexual relations. If he intended to sodomize an animal and unintentionally inserted his organ into his yevamah, he does acquire her [as his wife].17For sodomy is considered to be a forbidden form of relations.
ה׳יְבָמָה שֶׁנִּתְיַבְּמָה וְאָמְרָה בְּתוֹךְ שְׁלֹשִׁים יוֹם לֹא נִבְעַלְתִּי וְאַף עַל פִּי שֶׁהוּא אוֹמֵר בָּעַלְתִּי וְגֵרְשָׁהּ כּוֹפִין אוֹתוֹ שֶׁיַּחֲלֹץ הוֹאִיל וְקִדֵּם וְגֵרְשָׁהּ בְּגֵט. וְאִם עֲדַיִן לֹא גֵּרֵשׁ כּוֹפִין אוֹתוֹ שֶׁיִּבְעל אוֹ יַחֲלֹץ וְיוֹצִיא בְּגֵט. גֵּרְשָׁהּ לְאַחַר שְׁלֹשִׁים יוֹם וְהִיא אוֹמֶרֶת לֹא נִבְעַלְתִּי מְבַקְּשִׁים מִמֶּנּוּ שֶׁיַּחֲלֹץ לָהּ. וְאִם הָיָה מוֹדֶה שֶׁלֹּא בָּעַל כּוֹפִין אוֹתוֹ לַחֲלֹץ. הִיא אוֹמֶרֶת נִבְעַלְתִּי וְהוּא אוֹמֵר לֹא בָּעַלְתִּי אֵינָהּ צְרִיכָה חֲלִיצָה שֶׁאֵין זֶה נֶאֱמָן לְאָסְרָהּ עַל כָּל אָדָם אַחַר שֶׁכְּנָסָהּ:
5[The following rules apply when a yavam takes] his yevamah [home to] perform yibbum, and within 30 days she claims that they did not engage in sexual relations. [The yavam] claims that they did engage in relations and then divorces her. Since he already took the initiative and divorced her, we compel him to perform chalitzah with her.18Since it is within 30 days, we accept the possibility that the yavam did not engage in relations with her, and compel him to perform chalitzah so the yevamah can remarry another man (Yevamot 111b).If he did not divorce her, we compel him to engage in relations with her,19And remain married to her. or to perform chalitzah and also to divorce her, giving her a get.20Since he brought her home as his wife, even if he agrees that they did not engage in relations, he is required to divorce her, because it is likely that they did engage in relations (Maggid Mishneh; Ramah, Even HaEzer 167:6). Nevertheless, since she claims that they did not, and there is plausibility to her claim, he is also required to perform chalitzah.If he divorced her after thirty days had passed, and she claims that they did not engage in sexual relations, we request that he perform chalitzah with her.21After a couple have lived together for thirty days, we assume that they have engaged in relations, for a man will not restrain himself any longer. Hence, the man cannot be compelled to perform chalitzah (Yevamot, ibid.). Nevertheless, we ask him to perform this rite, for otherwise the woman will not be permitted to remarry. If, however, he admits that he had not entered into relations with her, we compel him to perform chalitzah with her.22He has nothing to lose in this concern, for since he divorced her without entering into relations with her, he is no longer permitted to fulfill the mitzvah of yibbum. Therefore, he should fulfill the mitzvah of chalitzah so that she can remarry.If she claims that they engaged in sexual relations, and he denies engaging in relations, she is not required to engage in chalitzah, for his word is not accepted [when he desires] to cause her to be forbidden to all other men, once he brings her to his home as his wife.
ו׳מִי שֶׁמֵּת וְהִנִּיחַ אַחִים רַבִּים מִצְוָה עַל הַגָּדוֹל לְיַבֵּם אוֹ לַחֲלֹץ שֶׁנֶּאֱמַר (דברים כה ו) ״וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד״. מִפִּי הַשְּׁמוּעָה לָמְדוּ שֶׁאֵינוֹ מְדַבֵּר אֶלָּא בִּבְכוֹר שֶׁבָּאַחִין כְּלוֹמַר גְּדוֹל הָאַחִין יָקוּם עַל שֵׁם אָחִיו הַמֵּת. וְזֶה שֶׁנֶּאֱמַר אֲשֶׁר תֵּלֵד מַשְׁמָעוֹ אֲשֶׁר יָלְדָה הָאֵם וְאֵין מַשְׁמָעוֹ אֲשֶׁר תֵּלֵד הַיְבָמָה:
6When a man dies [childless], and he is survived by many brothers, the mitzvah is incumbent on the eldest brother to perform either yibbum or chalitzah, as [implied by Deuteronomy 25:6]: "The firstborn son whom she bears [will perpetuate the name of the deceased brother]." The Oral Tradition interprets the verse as referring to the eldest of the surviving brothers, causing the verse to be rendered: "The eldest brother will perpetuate the name of the deceased brother." The subject of the phrase "whom she bears" is the mother of the brothers and not the yevamah.23According to the simple meaning of the verse, the subject is - as reflected in our translation - the yevamah. Nevertheless, in a halachic context, it is possible for one verse to have several interpretations. Accordingly, Yevamot 2:8 (see the Rambam's Commentary on the Mishnah) interprets this verse to be referring to the deceased's mother. (See also Yevamot 24a, quoted in Chapter 6, Halachah 8, which considers the yevamah the subject of the phrase in a different halachic context.)
ז׳לֹא רָצָה הַגָּדוֹל לְיַבֵּם מְחַזְּרִין עַל כָּל הָאַחִין. לֹא רָצוּ חוֹזְרִין אֵצֶל הַגָּדוֹל וְאוֹמְרִין עָלֶיךָ מִצְוָה אוֹ חֲלֹץ אוֹ יַבֵּם. וְאֵין כּוֹפִין אֶת הַיָּבָם לְיַבֵּם אֲבָל כּוֹפִין אוֹתוֹ לַחֲלֹץ:
7If the eldest brother does not desire to perform yibbum, all the other brothers are given that option.24See Halachah 12. If they also do not desire, we return to the eldest brother and tell him: "The mitzvah is incumbent on you. Perform either yibbum or chalitzah." We do not compel the yavam to perform yibbum;25Although the Rambam maintains that the mitzvah of yibbum takes priority over the mitzvah of chalitzah, we cannot compel a man to wed a woman with whom he does not desire to live. we do, however, compel him to perform chalitzah.26For until this mitzvah is performed, the yevamah may not remarry.
ח׳אָמַר הַגָּדוֹל הַמְתִּינוּ לִי עַד שֶׁיַּגְדִּיל הַקָּטָן אוֹ עַד שֶׁיָּבוֹא הַהוֹלֵךְ אוֹ עַד שֶׁיַּבְרִיא הַחֵרֵשׁ וְנִמָּלֵךְ בּוֹ וְאִם לֹא יִרְצֶה אֲנִי אֲיַבֵּם אוֹ אֲנִי אֶחְלֹץ אֵין שׁוֹמְעִין לוֹ. אֶלָּא אוֹמְרִין לוֹ עָלֶיךָ מִצְוָה אוֹ יַבֵּם אוֹ חֲלֹץ:
8If the eldest brother says: "Give me a respite until [a brother] who is a minor attains majority," "... until [a brother] who is on a journey returns," or "... until [a brother] who has [temporarily] lost his powers of speech and hearing recovers; if he refuses, I will perform yibbum or chalitzah" - his request is not accepted. He is told: "The mitzvah is incumbent on you. Perform either yibbum or chalitzah."27I.e., the yevamah should not be subjected to an unnecessary delay, if possible.
ט׳וְכֵן אִם הָיָה הַגָּדוֹל בִּמְדִינָה אַחֶרֶת אֵין אָחִיו הַקָּטָן יָכוֹל לוֹמַר עַל אָחִי הַגָּדוֹל הִיא הַמִּצְוָה הַמְתִּינוּ לוֹ עַד שֶׁיָּבוֹא אֶלָּא אוֹמְרִין לְזֶה שֶׁהוּא כָּאן יַבֵּם אוֹ חֲלֹץ:
9Similarly, if the eldest brother is in another country,28When stating this law, the Shulchan Aruch (Even HaEzer 161:5) uses the expression "an overseas country." The Beit Shmuel 161:6 cites the expression used by the Rambam and explains that it refers to a country in which a different language is spoken, even if it is relatively close. He cites a ruling of Mahari Mintz, which states that if the eldest brother is in another city, and the yevamah does not have the funds to pay for travel there, the younger brother can be compelled to perform the mitzvah. (Kin'at Eliyahu notes that the Rambam often uses the word medinah to mean metropolis. He questions whether that is the Rambam's intent here.) [the obligation is transferred to his younger brother]. The younger brother does not have the option of saying: "The mitzvah is incumbent on my older brother. Wait until he comes." Instead, we tell the brother that is present: "Perform either yibbum or chalitzah."29Here also, the intent is not to subject the yevamah to an unnecessary delay.
י׳יְבָמָה הָרְאוּיָה לְיִבּוּם שֶׁלֹּא רָצְתָה לְהִתְיַבֵּם דִּינָהּ כְּדִין מוֹרֶדֶת עַל בַּעְלָהּ וְכוֹפִין אֶת יְבָמָהּ לַחֲלֹץ לָהּ וְתֵצֵא בְּלֹא כְּתֻבָּה. וְאִם הִנִּיחַ אָחִיו נָשִׁים רַבּוֹת כָּל מִי שֶׁתְּבָעָהּ הַיָּבָם מֵהֶן לְיִבּוּם וְלֹא רָצְתָה הִיא הַמּוֹרֶדֶת וְחוֹלֵץ לָהּ וְתֵצֵא בְּלֹא כְּתֻבָּה. וּשְׁאָר צָרוֹתֶיהָ שֶׁלֹּא נִתְבְּעוּ נוֹטְלוֹת כְּתֻבָּתָן כִּשְׁאָר הָאַלְמָנוֹת:
10The laws pertaining to a yevamah who is fit to perform yibbum30I.e., there is no halachic reason preventing her from doing so. and refuses to do so are the same as those governing a woman who rebels against her husband.31See Hilchot Ishut 14:8, which states that a woman who refuses to engage in marital relations because she is repelled by her husband, should be divorced by her husband, because "she is not like a captive, [to be forced] to engage in relations with someone she loathes." She does, however, forfeit the money due her by virtue of her marriage contract and any presents that her husband gave her. As mentioned in the notes on Hilchot Ishut, the Shulchan Aruch (Even HaEzer 77:2) follows a different perspective with regard to this ruling.There is also a difference of opinion among the authorities whether a woman who refuses to engage in yibbum is considered to have "rebelled." As mentioned in the notes on Chapter 1, Halachah 2, the Ashkenazic authorities maintain that the mitzvah of chalitzah takes precedence over the mitzvah of yibbum. Therefore, they maintain that a woman has the right to refuse to engage in yibbum, and she is not judged to have "rebelled" for this reason. We compel her yavam to perform chalitzah with her,32The Shulchan Aruch (Even HaEzer 77:2) differs with the Rambam and maintains that a husband should not be compelled to divorce a woman who "rebels." According to that perspective, a yavam should also not be compelled to perform chalitzah.According to the Ramah (Even HaEzer 165:1), who favors chalitzah, when a yavam desires to perform yibbum and the yevamah refuses, the yavam cannot be compelled by force to perform chalitzah. He should, however, be convinced to do so. Note the gloss of the Beit Shmuel 165:1, which discusses this ruling in detail.All authorities agree that if the yavam is one of the individuals considered unfit to marry (see Halachah 14), he should be compelled to perform chalitzah. and she forfeits [the money due her by virtue of her] marriage contract.When the deceased is survived by many wives, the one that the yavam asks to perform yibbum and refuses is considered to have "rebelled." He should perform chalitzah with her, and she forfeits [the money due her by virtue of her] marriage contract.33This applies even if one of the other women would be willing to marry the yavam; the choice is his and not hers. The other wives who were not asked [to perform yibbum] receive [the money due them by virtue of their] marriage contracts, as other widows do.
י״אהָיוּ הַיְבָמִין רַבִּים וְתָבַע אוֹתָהּ הַגָּדוֹל לְיִבּוּם וְהִיא אֵינָהּ רוֹצָה בּוֹ וְרוֹצָה בְּאָחִיו אֵין שׁוֹמְעִין לָהּ, שֶׁמִּצְוָה בַּגָּדוֹל לְיַבֵּם:
11If [the deceased was survived by] many [brothers], and the eldest brother states that he wants to perform yibbum with [one of the deceased's wives], [she is under obligation to him].34The Maggid Mishneh explains that the woman must either consent to yibbum or be considered to have "rebelled." Even if she does not desire [to marry] him, but is willing to marry one of his brothers, her desire is not considered. For the mitzvah is that the eldest brother perform yibbum.
י״באָמַר הַגָּדוֹל אֵינִי רוֹצֶה לֹא לְיַבֵּם וְלֹא לַחֲלֹץ. הֲרֵי אַחַי לְפָנַיִךְ. וְתָבַע אוֹתָהּ אֶחָד מִן הָאַחִין לְיִבּוּם וְהִיא אֵינָהּ רוֹצָה בּוֹ וְרָצְתָה בְּאָח אַחֵר וְהוּא רוֹצֶה בָּהּ. אֵין זוֹ מוֹרֶדֶת מֵאַחַר שֶׁנִּסְתַּלֵּק הַגָּדוֹל שֶׁמִּצְוָה בּוֹ הֲרֵי כֻּלָּן שָׁוִין וְהוֹאִיל וְהִיא רוֹצָה בְּאֶחָד מֵהֶן וְהוּא רוֹצֶה בָּהּ הֲרֵי זֹאת לֹא מָרְדָה. וְלֹא עוֹד אֶלָּא אִם הָיָה אֶחָד מֵהֶן בִּמְדִינָה אַחֶרֶת וְאָמְרָה הֲרֵי אֲנִי מַמְתֶּנֶת אוֹתוֹ עַד שֶׁיָּבוֹא וִייַבֵּם אוֹתִי אֲבָל זֶה אֵינִי רוֹצָה בּוֹ אֵין זוֹ מוֹרֶדֶת. וְאוֹמְרִים לְזֶה שֶׁאֵינוֹ הַגָּדוֹל הַתּוֹבֵעַ אוֹתָהּ אִם תִּרְצֶה לַחֲלֹץ לָהּ וְלִתֵּן לָהּ כְּתֻבָּה חֲלֹץ. וְאִם לָאו הֲרֵי רָצְתָה שֶׁתֵּשֵׁב עַד שֶׁיָּבוֹא אָחִיךָ הוֹאִיל וְאֵין לְךָ דִּין קְדִימָה עָלָיו:
12[The following rules apply when] the eldest brother says: "I do not want to perform either yibbum or chalitzah. Behold, my brother is present." If one of the brothers asks her to perform yibbum, and she does not desire [to marry] him, but she does desire [to marry] another brother, and he desires [to marry] her, she is not considered to have "rebelled." Once the eldest brother upon whom the mitzvah is incumbent demurs, all the brothers are equal.35The Ra'avad and others differ with the Rambam on this point and maintain that if the eldest brother demurs, the prerogative is given to the brother who is next in the order of age. This perspective is followed by the Shulchan Aruch (Even HaEzer 161:4). Since she desires [to marry] one of [the brothers], and he desires [to marry] her, she is not considered to have "rebelled."36If, however, the brother she desires to marry does not desire to marry her, she is considered to have "rebelled," as stated in the following halachah.Moreover, if one of the brothers was in another country, and the woman says: "I would prefer to wait for him to come and perform yibbum with me. I do not want [to marry] this one," she is not considered to have "rebelled." [Since] the brother who asks [to marry her] is not the eldest, we tell him: "If you desire to perform chalitzah and pay her [the money due her by virtue of her] marriage contract, you may.37Although, according to the Rambam, the mitzvah of yibbum takes priority over the mitzvah of chalitzah, this is the case only when yibbum can be performed immediately. In this instance, this brother is not forced to wait until his other brother returns, for having the obligation to perform yibbum or chalitzah is a detriment to a man, as stated in Halachah 16 (Rav David Arameah). If not, she wants to wait until your brother comes. Since you do not have a prior claim, [she is granted that prerogative].38Generally, the court makes an effort to have the mitzvah of yibbum or chalitzah performed as soon as possible, as reflected in Halachot 8 and 9. This, however, is a measure of consideration for the woman, so that she will not be forced to remain without a husband. In this instance, it is she who desires the delay. Hence, she is given that prerogative (Or Sameach).
י״גבָּא זֶה שֶׁתָּלְתָה בּוֹ וְלֹא רָצָה בָּהּ. חוֹזְרִין אֵצֶל זֶה שֶׁתָּבַע אוֹתָהּ לְיַבֵּם וְהִיא אֵינָהּ רוֹצָה בּוֹ. וְאוֹמְרִין לָהּ אֵין כָּאן מִי שֶׁרָצָה לְיַבֵּם אֶלָּא זֶה וּמִצְוַת יִבּוּם קוֹדֶמֶת. אוֹ תִּתְיַבֵּם לוֹ אוֹ תֵּצֵא בְּלֹא כְּתֻבָּה כְּדִין כָּל מוֹרֶדֶת:
13If the brother [whom the yevamah desired to marry] returned and did not desire [to marry] her, we turn again to the brother who desired to perform yibbum, but was not desired by the woman. We tell the woman: "There is no one who desires to perform yibbum with you except this one, and the mitzvah of yibbum is given priority. Either perform yibbum with this one, or leave without receiving [the money due because of your] marriage contract, as is the law with regard to all women who rebel."
י״דכָּל יְבָמָה שֶׁאָמַרְנוּ שֶׁדִּינָהּ שֶׁתַּחֲלֹץ וְלֹא תִּתְיַבֵּם הֲרֵי זוֹ נוֹטֶלֶת כְּתֻבָּתָהּ אִם יֵשׁ לָהּ כְּתֻבָּה כִּשְׁאָר כָּל הָאַלְמָנוֹת. וְכֵן אִם הָיָה יְבָמָהּ מֻכֶּה שְׁחִין אוֹ שֶׁיֵּשׁ בּוֹ שְׁאָר מוּמֵי אֲנָשִׁים חוֹלֵץ לָהּ וְנוֹטֶלֶת כְּתֻבָּתָהּ. נוֹלְדוּ בָּהּ מוּמִין כְּשֶׁהִיא שׁוֹמֶרֶת יָבָם, נִסְתַּחֲפָה שָׂדֵהוּ. אִם לֹא רָצָה לְיַבֵּם יַחֲלֹץ וְיִתֵּן כְּתֻבָּה:
14Whenever the law is that a woman should perform chalitzah and not yibbum, as we have mentioned,39See Chapter 1, Halachah 5. (See also Chapter 3, Halachot 4, 13-14 and Chapter 6, Halachah 7.) if she is entitled to receive [the money due her by virtue of] her marriage contract,40I.e., her first husband or his estate would have had to pay her the money due her by virtue of her marriage contract. she may collect that money in the same way as other widows.Similarly, if the yavam was a leper or he has other blemishes [for which] men [are required to divorce],41He has constant bad breath or a smell coming from his nose, or he works as a copper miner, a tanner, or a collector of dog feces, as stated in Hilchot Ishut 25:11. he must perform chalitzah for her, and she is entitled to receive [the money due her by virtue of] her marriage contract.If a yevamah suffered blemishes while she was waiting for yibbum, it is the yavam's lack of fortune.42A man is entitled to divorce his wife if he discovers that she possessed physical blemishes that mar her appeal before her marriage, and he is not required to pay her the money due her by virtue of her marriage contract, as stated in Hilchot Ishut 7:8, 25:2. Nevertheless, in this instance this law does not apply, because the connection between the yavam and the yevamah begins directly after her first husband's death. If he does not desire to perform yibbum, he must perform chalitzah and give her [the money due her by virtue of] her marriage contract.
ט״ויְבָמָה שֶׁנָּדְרָה הֲנָיָה מִיבָמָהּ בְּחַיֵּי בַּעְלָהּ. אוֹ שֶׁנָּדְרָה הֲנָיָה מִכָּל הַיְּהוּדִים. כּוֹפִין אוֹתוֹ שֶׁיַּחֲלֹץ לָהּ וְתִטּל כְּתֻבָּתָהּ. וְאִם נָדְרָה לְאַחַר מִיתַת בַּעְלָהּ מְבַקְּשִׁים מִמֶּנּוּ שֶׁיַּחֲלֹץ לָהּ וְאִם לֹא רָצָה הֲרֵי זוֹ מוֹרֶדֶת. וְכֵן אִם נִתְכַּוְּנָה בְּנִדְרָהּ אֲפִלּוּ בְּחַיֵּי בַּעְלָהּ כְּדֵי שֶׁלֹּא יְיַבֵּם אוֹתָהּ אֵין כּוֹפִין אוֹתוֹ לַחֲלֹץ אֶלָּא אִם כֵּן מָרְדָה וְתֵצֵא בְּלֹא כְּתֻבָּה:
15When, during her [first] husband's lifetime, a yevamah takes a vow prohibiting her from deriving benefit from her yavam,43I.e., she took a vow not to benefit from the yavam in her husband's lifetime for other reasons, without the explicit intent that she would free herself from obligation to him. or from all Jews,44I.e., the woman took a vow not to benefit from any Jews. Although that vow did not take effect with regard to her husband, once her husband died it takes effect with regard to the yavam. [her yavam] should be compelled to perform chalitzah for her, and she is entitled to collect [the money due by virtue of] her marriage contract.45She is not allowed to marry the yavam, because she will derive benefit from him and thus break her vow. Nor is she considered to be a woman who rebels, because her vow was not taken to free her from the obligation of yibbum. (See Yevamot 112a.)If she takes such a vow after her [first] husband's death, we request46Since the vow was taken specifically to free her from the obligation of yibbum, the yavam is not obligated to respect it. [her yavam] to perform chalitzah for her.47If he agrees and performs chalitzah willingly, he is obligated to pay her the money due by virtue of her marriage contract. If he does not desire to do so, she is considered to have "rebelled."48In which case he is compelled to perform chalitzah with her, but is not required to pay her the money due by virtue of her marriage contract, as stated in Halachah 10. Similarly, even if she took such a vow in her husband's lifetime, if her intent was that he should not perform yibbum with her,49Moreover, even if we are unsure of the woman's intent when taking the vow, we assume that she desired to free herself from the obligation of yibbum. he is not compelled to perform chalitzah, unless she [accepts the status of] one who rebels and forfeits [payment of] her marriage contract.
ט״זיְבָמָה שֶׁתְּבָעָהּ הַיָּבָם לַחֲלִיצָה וְהִיא אוֹמֶרֶת אֵינִי חוֹלֶצֶת וְלֹא נוֹטֶלֶת כְּתֻבָּה אֶלָּא אֵשֵׁב בְּבֵית בַּעְלִי וְכִשְׁאָר כָּל הָאַלְמָנוֹת אֵין שׁוֹמְעִין לָהּ. שֶׁהֲרֵי הִקְנוּ אוֹתָהּ לְזֶה מִן הַשָּׁמַיִם. רָצָה מְיַבֵּם רָצָה חוֹלֵץ וְנוֹתֵן כְּתֻבָּה. וְלֹא עוֹד אֶלָּא אֲפִלּוּ אָמְרָה אֲנִי נִזּוֹנֶת מִשֶּׁלִּי וְאֵשֵׁב עֲגוּנָה כָּל יְמֵי חַיַּי אֵין שׁוֹמְעִין לָהּ. שֶׁהֲרֵי הַיָּבָם אוֹמֵר לָהּ כָּל זְמַן שֶׁאַתְּ זְקוּקָה לִי אֵין נוֹתְנִין לִי אִשָּׁה אַחֶרֶת. וַאֲפִלּוּ הָיָה נָשׂוּי אֶפְשָׁר שֶׁיִּשָּׂא אִשָּׁה אַחֶרֶת אוֹ תִּהְיֶה לוֹ מְרִיבָה בְּתוֹךְ בֵּיתוֹ מִפְּנֵי הַיְבָמָה:
16No heed is paid to the words of a yevamah, when her yavam asks her to perform chalitzah, and she says: "I do not want to perform chalitzah, nor do I want to collect [the money due me by virtue of my] marriage contract. Instead, I will remain in my husband's house like other widows."50As stated in Hilchot Ishut 18:1-2, a widow is entitled to live in her deceased husband's home and derive her livelihood from his estate until she remarries. For she was given over to [the yavam] from heaven, and the choice [is his whether] to perform yibbum or to perform chalitzah51The Kiryat Sefer explains that just as a man can divorce his wife against her will, so too, a yavam can perform chalitzah with his yevamah against her will. Even if she desires yibbum, she can be compelled to perform chalitzah. The Maggid Mishneh cites certain authorities who differ with the Rambam and maintain that since the mitzvah of yibbum takes priority, the yevamah cannot be forced to perform chalitzah. and pay her [the money due her by virtue of her] marriage contract.Moreover, even if she says "I will provide for my sustenance from my own means, and I will remain without a husband for the rest of my life,"52I.e., she is willing to forego the obligation of her husband's estate to her. her words are not heeded. For the yavam will tell her: "As long as you are under obligation to me, no one else will want to marry me."53For as long as there is the possibility that the yavam will marry the yevamah, other women will hesitate to marry him, for no woman would like to share her husband with another woman. Even if he is already married [this argument still holds weight], for it is possible for him [to desire] to marry another wife, or that [his obligation to] the yevamah will cause strife within his marriage.54Hence, the woman is compelled to perform chalitzah.If neither the yevamah nor the yavam desires to perform chalitzah, the court is under no obligation to see that the mitzvah is performed. Although the Zohar, Volume III, page 180a, explains that chalitzah brings about benefit for the deceased's soul, neither his brother nor his wife has a binding obligation to perform this act on his behalf. If they desire to, they may, but they cannot be compelled to do so. (See the Responsa of the Chatam Sofer, Even HaEzer, Volume II, Responsum 85.)
י״זיְבָמָה שֶׁלֹּא הָיָה לָהּ עַל בַּעְלָהּ כְּתֻבָּה מִפְּנֵי שֶׁהָיְתָה אֲסוּרָה עָלָיו וַהֲרֵי הִיא מֻתֶּרֶת לַיָּבָם כְּמוֹ שֶׁיִּתְבָּאֵר. אִם רָצָה הַיָּבָם לְיַבֵּם מְיַבֵּם וְאֵין לָהּ עָלָיו כְּתֻבָּה כְּדֶרֶךְ שֶׁלֹּא הָיָה לָהּ עַל בַּעְלָהּ. וְדִינָהּ עִם יְבָמָהּ בַּתּוֹסֶפֶת כְּמוֹ שֶׁהָיְתָה עִם בַּעְלָהּ. אֲבָל אִם לֹא כָּתַב לָהּ בַּעְלָהּ כְּתֻבָּה אוֹ שֶׁמָּכְרָה לוֹ כְּתֻבָּתָהּ אוֹ מָחֲלָה אוֹתָהּ צָרִיךְ הַיָּבָם לִכְתֹּב לָהּ כְּתֻבָּה כִּשְׁאָר הָאַלְמָנוֹת:
17[The following rules apply when] a yevamah had no right to the privileges of a marriage contract from her [deceased] husband, because she was forbidden to him, but she is permitted to marry the yavam, as will be explained.55See Chapter 6, Halachah 13. If the yavam desires to perform yibbum, he may. He is not obligated to the woman [for the privileges of her] marriage contract, just as her [previous] husband was not.56The Maggid Mishneh quotes the Ramban and the Rashba as saying that if the yavam desires to divorce the yevamah immediately, he is not required to pay her the money due her by virtue of her marriage contract. If, however, he desires to remain married to the woman, he must write a marriage contract for her, for it is forbidden for a man to remain married to a woman without a marriage contract, as stated in Hilchot Ishut 10:10. The Ramah (Even HaEzer 168:9) quotes this interpretation.The Maggid Mishneh notes that this interpretation does not fit the Rambam's wording. In that light, the Or Sameach offers the following interpretation: The yavam is never obligated to write a marriage contract for the yevamah. Why did our Sages require a man to write a marriage contract for his wife? So that there would be a financial responsibility attached to divorce, and hence a husband would not consider it to be a light matter. In this instance, the yavam is held responsible for the additional amount that the husband added to the marriage contract. Hence, there is financial responsibility attached to divorce, and there is no imperative for a further obligation. The laws regarding the yavam's obligation for the additional amount to be paid the woman are the same as those that applied with regard to her husband.57As mentioned in Hilchot Ishut 24:2-3, although her husband is not obligated for the fundamental requirement of the marriage contract, he is obligated for the additional amount that he promised her. This obligation is transferred to the yavam.If, however, a husband did not write his wife a marriage contract, or she sold him or waived to him the rights to her marriage contract, the yavam is obligated to write a new marriage contract for her as he would be required for another widow.58The yavam is not, however, obligated to write a marriage contract equivalent to the one that the woman's first husband gave her. It is sufficient that he write her a marriage contract for 100 zuz, as explained in Hilchot Ishut 22:14.
י״חהַיְבָמָה קֹדֶם שֶׁיָּבוֹא עָלֶיהָ יְבָמָהּ אוֹ קֹדֶם שֶׁיַּחֲלֹץ לָהּ הֲרֵי הִיא אֲסוּרָה לְהִנָּשֵׂא לְזָר שֶׁנֶּאֱמַר (דברים כה ה) ״לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה לְאִישׁ זָר״. וְאִם נִשֵּׂאת לְאַחֵר וּבָעַל לוֹקֶה הוּא וְהִיא וּמוֹצִיאָהּ בְּגֵט. וַאֲפִלּוּ הָיוּ לוֹ כַּמָּה בָּנִים מִמֶּנָּה. וְנֶאֶסְרָה עָלָיו וְעַל יְבָמָהּ. וִיבָמָהּ חוֹלֵץ לָהּ וְאַחַר כָּךְ תִּהְיֶה מֻתֶּרֶת לַאֲחֵרִים:
18Before the yavam performs yibbum or chalitzah with the yevamah, she is forbidden to marry another man,59Both Sefer HaMitzvot (Negative Commandment 357) and Sefer HaChinuch (Mitzvah 596) include this as one of the Torah's 613 commandments. as [Deuteronomy 25:5] states: "the wife of the deceased should not be allowed to [marry] an outsider."If she marries another person,60This applies even if she married without knowing of the existence of the yavam (Shulchan Aruch, Even HaEzer 159:2). and they engage in sexual relations, they are both punished by lashes,61If, however, the couple do not engage in relations, they are not punished with lashes. and he must divorce her with a get. [This applies] even if she has borne him several children.62The children are not, however, considered illegitimate. See Hilchot Issurei Bi'ah 15:1-2. She is forbidden to him and to her yavam.63I.e., she is compared to a woman who engages in relations with another man while married. See Hilchot Gerushin 10:7.She becomes forbidden to both men, even though she claims not to have engaged in sexual relations with her second husband (Kessef Mishneh; Ma'aseh Rokeach; see Hilchot Issurei Bi'ah 19:3). Her yavam should perform chalitzah with her; this causes her to be permitted to marry other men.
י״טנִתְקַדְּשָׁה לְאַחֵר לֹא נֶאֶסְרָה עַל יְבָמָהּ אֶלָּא נוֹתֵן לָהּ הַזָּר שֶׁקִּדְּשָׁהּ גֵּט וִיבָמָהּ מְיַבֵּם אוֹ חוֹלֵץ. וְאִם הָיָה יְבָמָהּ כֹּהֵן שֶׁאֵינוֹ יָכוֹל לִשָּׂא גְּרוּשָׁה תֵּצֵא מִן הַזָּר בְּגֵט כְּדֵי שֶׁלֹּא יְהֵא הַחוֹטֵא נִשְׂכָּר. וְיַחֲלֹץ לָהּ יְבָמָהּ:
19If she was consecrated by another man, she does not become forbidden to her yavam. Instead, the man who consecrated her should divorce her, and her yavam may perform either yibbum or chalitzah.64The Shulchan Aruch (Even HaEzer 159:1) states that this law applies even when the man consecrates her without knowing of the existence of the yavam. The Beit Shmuel 159:1 differs and cites the opinion of the Rashba and the Ramban, who maintain that in such an instance, if the yavam desires to perform chalitzah, the woman may remain married to her second husband.If her yavam was a priest who is forbidden to marry a divorcee, she should be divorced by the man who consecrated her, so that the sinner should not benefit, and her yavam should perform chalitzah with her.65I.e., one might think that since the yavam cannot perform yibbum with her, she should be allowed to remain married to her second husband. If so, however, the man's transgression - marrying the yevamah - will have brought him benefit. Hence, he is required to divorce her (Yevamot 92b).
כ׳חָזַר הַזָּר שֶׁגֵּרְשָׁהּ מִן הָאֵרוּסִין וּנְשָׂאָהּ אַחַר שֶׁחָלַץ לָהּ יְבָמָהּ אֵין מוֹצִיאִין אוֹתָהּ מִיָּדוֹ. אֲבָל אִם גֵּרְשָׁהּ מִן הַנִּשּׂוּאִין וְחָזַר וּנְשָׂאָהּ אַחַר שֶׁחָלְצָה מוֹצִיאִין אוֹתָהּ מִיָּדוֹ מִפְּנֵי שֶׁהִיא דּוֹמָה לְאֵשֶׁת אִישׁ שֶׁנִּשֵּׂאת וּבָא בַּעְלָהּ שֶׁהִיא אֲסוּרָה עַל זֶה וְעַל זֶה כְּמוֹ שֶׁבֵּאַרְנוּ. וְהַיְבָמָה שֶׁזִּנְּתָה וְהִיא זְקוּקָה לֹא נֶאֶסְרָה עַל יְבָמָהּ אֶלָּא רָצָה חוֹלֵץ רָצָה מְיַבֵּם:
20If the man who consecrated [the yevamah] and then divorced her, marries her [after] her yavam performs chalitzah with her, they are not forced to separate.66The rationale is that since the prohibition is merely a disciplinary measure, if the couple marry again they may remain married (Maggid Mishneh).The Ramah (Even HaEzer 159:1) states that if the second husband knew of the existence of the yavam and consecrated the woman anyway, he is forbidden to remain married to her, even if he remarried her after chalitzah. If, by contrast, a man divorced [a yevamah] after being married to her and then remarried her again, the couple are forced to separate. For this resembles the case of a married woman who [thought that her husband had died and] remarried, who is forbidden to both her first and second husbands, as has been explained.67See Hilchot Gerushin 10:5,7).A yevamah who engages in licentious sexual relations does not become forbidden to her yavam.68The Ramah (Even HaEzer 159:3) states that she does, however, become forbidden to the man with whom she engaged in relations. Even if her yavam performs chalitzah, the two may not marry. If he desires, he may perform chalitzah; if he desires, he may perform yibbum.
כ״אכָּל יְבָמָה שֶׁהִיא סָפֵק מִדִּבְרֵיהֶם אִם יֵשׁ עָלֶיהָ זִקַּת יָבָם אוֹ אֵין עָלֶיהָ זִקַּת יָבָם. כְּגוֹן יְבָמָה שֶׁיָּלְדָה וָלָד שֶׁלֹּא כָּלוּ לוֹ חֳדָשָׁיו וּמֵת בְּתוֹךְ שְׁלֹשִׁים יוֹם שֶׁדִּינָהּ שֶׁתַּחֲלֹץ מִסָּפֵק מִדִּבְרֵיהֶם כְּמוֹ שֶׁבֵּאַרְנוּ. אִם הָלְכָה וְנִתְקַדְּשָׁה לְאַחֵר קֹדֶם חֲלִיצָה חוֹלֵץ לָהּ יְבָמָהּ וְתֵשֵׁב עִם בַּעְלָהּ. וְאִם נִתְקַדְּשָׁה לְכֹהֵן שֶׁהוּא אָסוּר בַּחֲלוּצָה אֵינוֹ חוֹלֵץ לָהּ. שֶׁאֵין אוֹסְרִין עַל זֶה אִשְׁתּוֹ מִשּׁוּם סְפֵק דִּבְרֵיהֶן. גֵּרְשָׁהּ הַכֹּהֵן אוֹ מֵת הֲרֵי זוֹ חוֹלֶצֶת וְאַחַר כָּךְ מֻתֶּרֶת לַאֲחֵרִים לְכַתְּחִלָּה:
21[The following rules apply to] any yevamah concerning whom there is a question according to Rabbinic law whether or not she is under obligation to a yavam - e.g., a yevamah bore a child who died within thirty days, after a pregnancy that was not full term. In this instance, she is required by Rabbinic law to perform chalitzah, because of the doubt [that exists whether the birth was viable], as explained above.69This refers to an instance where the child's physical appearance indicates that the birth was viable. Therefore, the woman is not required to perform chalitzah according to Scriptural law. Nevertheless, because the pregnancy was not full term, our Sages required chalitzah, as explained in Chapter 1, Halachah 5. If such a woman was consecrated by another man before performing chalitzah, her yavam should perform chalitzah with her, and she may remain married to her husband.70I.e., we do not force the couple to divorce, as in the previous halachah.If she was consecrated by a priest - who is forbidden to be married to a woman who performed chalitzah - [her yavam] should not perform chalitzah for her.71In his gloss on the Shulchan Aruch (Even HaEzer 164:7), Rabbi Akiva Eiger states that this leniency applies only when the priest consecrated the woman without knowing of her obligation to perform chalitzah. If he knew of her obligation and consecrated her nonetheless, the couple are not permitted to remain married. [This leniency was instituted] since we do not cause a man's wife to be forbidden because of a Rabbinic decree instituted on account of doubt.72The Ramah (Even HaEzer 164:7) states that similar laws apply when a yevamah was consecrated by an Israelite, and her yavam is abroad and cannot perform chalitzah for her.If the priest divorces [the woman] or dies, she should perform chalitzah.73I.e., the leniency is granted to the priest, because it is necessary and not to other men. Afterwards, she is permitted, a priori, to marry other men.