Rambam - 3 Chapters a Day

Note the ruling of the Chelkat Mechokek 17:93, who explains that the Rambam’s decision applies only in an instance where the woman has already made false statements in the presence of a court. The fact that a couple constantly quarrel is not considered serious enough to warrant the stringencies mentioned in this halachah.

And so, the couple were forced to remain married.

I.e., the stringencies apply even where peace prevails in the world at large, because of the strife that exists between the couple.

Yevamot 116a records a difference of opinion between the Sages regarding the rationale for this ruling. Rav Chananiah states that the reason is that we suspect that the woman is lying. Rav Simi bar Ashi states that we suspect that in an instance where her husband appears to be dying, the woman will not be careful and will conclude that he died, eventhough he remained alive.
The Rambam’s citation of the first opinion in this halachah represents a reversal of his thinking. For in his Commentary to the Mishnah (Yevamot 15:1), he mentions the latter view. According to the Rambam’s opinion stated here, even if the woman says that she buried her husband, her word is not accepted (Hagahot Maimoniot; Rama, Even HaEzer17:48).

The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, and therefore, the Rambam chooses the more stringent view. The Maggid Mishneh questionswhy the Rambam ignores the rationale given by the Talmud— that in most cases, a womanwho is granted permission on the basis of the testimony of one witness is careful and thoroughly investigates the matter before she marries, but in this instance, because of her hatred of her husband, she will not make such an investigation— and offers another rationale that is not mentioned there.
Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolution to this matter, explaining that the Rambam accepts the testimony of a single witness in such instances without question, because we assume that a person will not lie in an instance where the truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Nevertheless, since the question is left unresolved by our Sages, and a very severe matter is involve-ed, the Rambam does not desire to offer a leniency that was not accepted by our Sages. Therefore, he offers a different rationale, even though it was not mentioned in the Talmud.
On the basis of this explanation, Rav Eliyahu Mizrachi explains that if a witness comes to the court on his own initiative, the woman is granted license to remarry even when differences existed between her and her husband previously. The Chelkat Mechokek 17:95, however, states that this leniency is not accepted by the latter authorities.

If, however, the woman says that her husband died near the battlefront, but not in battle, her word is accepted (Rama, Even HaEzer 17:48).

There is a slight difficulty with the Rambam’s ruling, because the rationale that the Rambam mentioned previously — that she suspects that her husband died, and because of the high likelihood is willing to make such statements even though she has no definite knowledge — seemingly does not apply when the woman says: ‘‘I buried him.’’ For if a person is buried, he is definitely dead. In the responsum of Rav Eliyahu Mizrachi quoted by the Kessef Mishneh, it is explained that the woman will be afraid to tarry on a battlefield and bury her husband. Nevertheless, since she is certain that he died, she will exaggerate and say that she buried him, although she did not. Alternatively, the Levush states that we suspect that the fear and confusion of wartime is so great that she may have in fact buried a man, but she might have mistaken another man for her husband.

I.e., although war was raging nearby, her husband was not involved in the war and died at home. Her word is accepted, because we do not suspect that she will intentionally lie. And at home, away from the battlefront, she will know for certain whether or not her husband died.

On the one hand, if the woman desired to lie, she could have offered a better lie and not mentioned the war at all (miggo). Nevertheless, when a woman says that her husband diedin a war, our suspicion is that she erred and thought her husband died, even when he did not. Therefore, at the outset, she should not be granted permission to marry. If, however, she does marry, since there are grounds to believe her statement, we do not force her to leave her second husband.
The Rambam’s ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Rama, however, follows the ruling of Rabbenu Asher, who maintains that if the woman marries, she should be forced to leave her second husband.

If, however, the woman says that her husband died in bed at those times, her word is accepted. If she says that he died in a landslide or was bitten by a swarming mass of snakes, and she buried him, according to the Rambam her word is not accepted. Accord-ing to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh;Rama (Even HaEzer 17:51)].

This law applies even if she says that he died on his bed (Rama, Even HaEzer 17:53). We fear that she left her husband sick, without any source of nurture, and assumed that hedied without knowing for certain (Yevamot 114b).

In the previous instance, we do not fear that she is lying, but rather merely exaggerating and relying on the likelihood that he died. We do not, however, fear that she would exaggerate and say that she buried him if it were not true.

Rashi (Yevamot 115a, Avodah Zarah 25b) states that the attackers will keep the woman alive in order to rape her. Tosafot (Avodah Zarah 25b) explains that a woman is not considered likely to fight back, and her physical weakness arouses mercy. Therefore, she is left alive.

Rabbenu Asher rules that the woman’s word is not accepted. Rabbenu Nissim, more-over, maintains that that is the proper reading in the Mishneh Torah. Our translation follows the standard printed texts of the Mishneh Torah and the authoritative manuscripts most widely available. The Shulchan Aruch (Even HaEzer 17:55) states that the woman’s word is accepted, while the Rama quotes Rabbenu Asher’s view.

Chapter 12, Halachah 15.

On the basis of Hilchot Yibbum 4:31, the Beit Yosef (Even HaEzer 17) and others explain that here the Rambam is talking about a minor who is not intellectually mature. The testimony of a minor who is intellectually mature is accepted (see the following hala-chah). In the Shulchan Aruch (Even HaEzer 17:13), Rav Yosef Caro quotes the Ram-bam’s wording exactly. The Turei Zahav 17:9 and the Beit Shmuel 17:33, however, makethe above distinction.

Yevamot 121b explains that all these details are necessary, because it is possible that the children are play-acting and buried an insect that they called by the person’s name. If, however, their statements reflect sufficient details to indicate that the funeral actually took place, they may serve as the basis for license to be granted a woman to remarry.

This is one of the classic examples of the principle palginon diburo, ‘‘we divide his statement.’’ I.e., we accept his word with regard to the fact that so-and-so died. We discard the portion of his statement in which he said that he himself killed him. If we accepted that aspect of the statement as well, he would no longer be acceptable as a witness. For his deed would cause him to be disqualified on the basis of Scriptural Law. (See also Hilchot Edut 12:2.)

Chapter 12, Halachah 16.

If the gentile is making these statements with the intent that attention be paid to them, there is reason to suspect that perhaps he intends to create legal problems for a Jewish person. If, however, he makes statements casually, in the course of conversation, we do not suspect that a gentile will desire to cause problems for a Jew (Beit Shmuel 17:38).
As reflected in the halachot that follow, we do fear that a gentile may lie, if doing so will
enhance his position, and we fear that he will rush to the conclusion that a man died when
he is in fact alive.

If, however, a gentile says: ‘‘I killed so-and-so,’’ without any apparent intent to cast fear upon his listeners, the deceased’s wife is allowed to remarry (Shulchan Aruch, Even HaEzer17:7).

If, however, other gentiles relate in the course of conversation that a Jew was killed by gentile legal authorities, their word is accepted (Rama, Even HaEzer 17:14). As indicated by the Rama, there is a difference of opinion whether it is acceptable if gentile legal authorities report that a person was executed, but do not say that they performed the execution.
If gentile government authorities report that a person has died or been killed (but not executed by a court of law), their statements are accepted by many halachic authorities. Distinction should be made between the government authorities in democratic countries where freedom of speech prevails, and totalitarian governments that act arbitrarily without consideration of the populace.

The Chelkat Mechokek 17:29 states that this law applies even in instances where the gentile’s original statements were not sufficient to serve as a basis for remarriage.

If, however, the gentile was asked direct questions first, and then in the course of conversation said that a man died, his word is not accepted (Rama, Even HaEzer 17:15).

Chapter 12, Halachah 15.

I.e., as reflected by the second half of the halachah, this applies if the witness does not know any details of the person’s death at all. Since we do not know any details of the situation, we assume that his statements are true. When, however, the situation can be investigated, the court is obligated to do so. This is the subject of the remainder of the chapter and also the concern of many of the responsa issued by our Sages concerning this issue throughout the generations. For quite often, the evidence of a man’s death and the identification of his corpse were only partial, and the Rabbis had to clarify whether the testimony was sufficient to serve as grounds for his wife to remarry.

As stated in Halachah 28, the formal process with which witnesses are questioned is not employed with regard to testimony of this nature. Nevertheless, enquiry should be made lestthe witness had erred and made his statements on the basis of likelihood and not actual fact.

The commentaries explain that according to Scriptural Law, the man is considered to be dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remarrying in such an instance. (See Halachah 20.)

The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (based on Yevamot 121a) that this duration of time is considered to be three hours. Nevertheless, the later commentaries are more lenient and consider a far shorter period to be sufficient.

The Maggid Mishneh quotes the Rashba as stating that this applies only when the manwas tied to a rope or chain when cast into the water, and then a limb was lifted out, or if thelimb was lifted up in a net afterwards, and it could definitely be identified as the man’s. When quoting this law, the Shulchan Aruch (Even HaEzer 17:32) incorporates these concepts.

In this instance as well, the Maggid Mishneh quotes the Rashba as stating that even whenour Sages stated that a person could not live without a particular limb, they did not intend that he would necessarily die immediately, and it is possible that the person could live for twelve months. Therefore, even when such a limb is discovered, the woman is required towait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these concepts into its restatement of the law.

In this instance, however, the Rambam states that the likelihood that the man died is so great that his heirs may take possession of his inheritance (Hilchot Nachalot 7:3).

A lion’s lair is usually wide, and so the person will not necessarily provoke the lions. A pit of snakes is small, and the man will step on the snakes, and this will provoke them (Kessef Mishneh).

The Maggid Mishneh quotes the Rashba as stating that this applies only when the furnace is so deep that he cannot emerge from it. This qualification is quoted by the later authorities (Chelkat Mechokek 17:57; Beit Shmuel 17:92).

The Maggid Mishneh quotes the Rashba as stating that the same laws apply with regard to a caldron of water. When quoting this law, the Shulchan Aruch (Even HaEzer 17:30) incorporates these concepts.

For once the majority of these organs are slit, we can be certain that the person will die.

The Hebrew word tzaluv is translated both as crucified (the method of execution often used by the Romans in the Talmudic period) and as hung. We have chosen the latter termto emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer17) rules that if a person is seen hanging, testimony concerning his death may be offered. The Chelkat Mechokek 17:58 and the Beit Shmuel 17:94 dispute this and cite instances in which a person who had been hanged was subsequently rescued.

If, however, he was stabbed or shot in a place that would kill him, testimony that hedied may be offered (Beit Yosef, Even HaEzer 17; Beit Shmuel 17:94).

The Maggid Mishneh explains that this refers to an instance where the person remained there and watched for an amount of time sufficient for a person to die without seeing the person emerge from the water. This is substantiated by the later authorities (Chelkat Mecho-kek 17:61). If the witness does not observe the sea, watching for the person to emerge for that length of time, more stringent rules apply.

By saying he buried the deceased, the witness erases any questions of doubt that might exist regarding whether or not the person actually died. Alternatively, because he buried him, he will have seen his features closely and will not mistakenly identify him. As stated in Halachah 3, the testimony of a woman who says that her husband died at war is not accepted, even if she says that she buried him. The commentaries, however, differentiate between the two instances, explaining that since the woman’s husband is involved, she will be more emotionally upset and less objective. Hence, it is more likely that she would mistake the deceased’s identity. Alternatively, she desires to remarry, and thus she will stretch the truth slightly to be granted that license, while an outsider will not take such liberties.

Yevamot 115a states that the question in this instance is whether the testimony of one witness is accepted, because the matter will surely be revealed in the near future— in which case the woman would be permitted to remarry— or because we rely on the fact that the woman will carefully investigate the matter before she remarries, and in this instance, since it is highly likely that her husband died, she will rely on the likelihood and not make thorough investigation. Therefore, she should not be granted permission to remarry. Since the question is left unresolved, the ruling given by the Rambam applies.
In the responsum quoted by the Kessef Mishneh, Rabbi Eliyahu Mizrachi explains that—as reflected by the concluding halachah of this chapter— the Rambam maintains that The testimony of one witness is accepted, because the matter will surely be revealed in the near future. Nevertheless, he still maintains that, at the outset, the woman should not be granted permission to remarry, because in these situations it is possible for a person to think that aman has died, even though he is actually alive.

The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnesses offer the same testimony. As long as a body of water does not have a defined periphery, these laws apply.

This also reinforces the presumption that he died, for if he had remained alive, most likely he would have returned home or divulged his identity in another manner.

Halachah 16. Note also the Rambam’s comments in Hilchot Nachalot 7:3:
When a man drowned in water that does not have a defined periphery, witnesses[testify] that they saw him drown, and all traces of him have disappeared, his heirs may take possession of his estate, despite the fact that a priori, his wife is not granted permission to remarry.
The reason stringency was taken in these matters is [the severity of] a prohibition punishable by karet. But with regard to financial matters, if witnesses testify con-cerning an instance in which we can assume that the man died..., all traces of himhave disappeared, and we have heard that he died, the heirs may take possession of his estate.

The Rama (Even HaEzer 17:34) states that this applies only when the woman remarried after receiving license from a Rabbinic authority. If she remarried on her own initiative without consulting an authority, she should be forced to leave her second husband. sssss

46. This applies only when the sage issued this ruling knowingly. If, however, he issued the ruling in error, he is not censured in this manner (Chelkat Mechokek 17:64, based onYevamot 121a).

Yevamot 120a quotes Isaiah 3:9: ‘‘The recognition of their countenance testifies against them,’’ as support for this concept.

The Maggid Mishneh and the Kessef Mishneh differentiate among three types of signs:
a) simanim g’ru’im, signs that are not definitive, b) simanim muvhakim, signs that are definitive, c) simanim muvhakim b’yoter, signs that are extremely definitive.
Signs that are not definitive are never effective means of identification. Signs that are definitive are effective with regard to the identification of lost objects and other questions of monetary law, as stated in Hilchot Gezelah Va’Avedah 13:3-5. They are not, as stated in this halachah, effective with regard to the laws of marriage and divorce. (See also Hilchot Nachalot 7:3.) Signs that are extremely definitive— e.g., a get has a hole next to particular letter, as stated in Chapter 3, Halachah 11— may be relied upon with regard to the laws of marriage and divorce.
Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidence to identify the body. These distinctions are also reflected in the statement of the law in the Shulchan Aruch (Even HaEzer 17:24).

With regard to personal artifacts, there is a further problem. Even if there are very distinctive signs on these articles, they cannot serve as a means of identification, because it is possible that they were lost or stolen and taken by another man. See Shulchan Aruch (op. cit.).

There are opinions that maintain that if the person can pinpoint exactly the place of themole, it may be used as a sign of identification (Beit Shmuel 17:71).

. I.e., even if the witnesses think that they can identify the corpse, their testimony cannot be relied on, because the person’s facial features may have been distorted.

Yevamot 121a explains that lying in water generally causes the flesh of a corpse toshrink and the person’s features remain distinct.

Yevamot, ibid., mentions a corpse being identified after being in the Jordan River for 17days.

Once a corpse that has been lying in the water is brought to dry land, its features will begin to lose their distinctive qualities rapidly.
There are several different versions of this halachah. We have chosen to follow the standard printed text in our translation. The Kessef Mishneh states that the proper version should be ‘‘if the corpse lies on dry land for hours’’— i.e., it need not be identified immediately, but it cannot wait any significant period. The Shulchan Aruch (Even HaEzer 17:26) states that the body must be identified immediately after it emerges ontodry land. The Beit Shmuel 17:80, however, mentions that an interval of an hour is granted.

The Maggid Mishneh notes that the Rambam’s statement of this law is conditional, ‘‘If the... corpse became bloated,’’ implying that if we see that the corpse has not become bloated, we may identify it. The Rashba, by contrast, states we suspect that the facial features of a corpse will become distorted after a brief amount of time, and does not allow room for leniency. Even according to this conception, leniency has been granted by the later authorities when a corpse was removed frozen from a river, and it took several hours to thaw.

. In restating this law, there are several points mentioned by the Shulchan Aruch (ibid.):
a) the corpse may not have a wound. If the body was wounded, we fear that its featureswill be distorted; b) even if it is less than three days after the deceased’s passing, if his corpse lay in water for a significant period, it must be identified directly after its discovery. The Rama adds that extremely distinctive signs may be used as a means of identification even though the body has lain on dry land for a long period.

Although these sources of light are not overly bright, our Sages felt that they were sufficient to enable a person to identify a corpse. There is no need to wait until daylight.

The Tur (Even HaEzer 17) states that the person must mention both these factors: hisfather’s name and his city. The Beit Shmuel 17:66 states that, although in general one of these means of identification would have been sufficient, both are necessary because the person’s facial features have changed. The Chelkat Mechokek 17:40, however, states that when it is obvious that the person knows the place from which the person came, the ruling of the Rambam and the Shulchan Aruch (Even HaEzer 17:23) may be followed, and onlyone factor need be mentioned. This is also borne out by the following halachah and itssource in Yevamot 115b.

I.e., we do not assume that he was lying, but instead suppose that the poison caused his features to change (Meiri).

I.e., he was informing the Rabbinical court of that city that one of the Jewish inhabitants had died (Kessef Mishneh).

The Ra’avad and the Maggid Mishneh mention that this principle applies only when we do not know of another person in the city with that name, or we know that this other person is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additions into its statement of this law.

The Maggid Mishneh explains that the Rambam’s ruling is that when a gentile knows the name of a Jew, it is unnecessary for him to say that he buried him, when relating that he died. If, however, the gentile did not know the identity of the Jew, it is necessary for him to say that he buried him.
The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam with regard to this point and maintain that the gentile’s statements are accepted even when he does not say that he buried the Jew. The Shulchan Aruch (Even HaEzer 17:17) mentions both opinions, but appears to favor the latter view.

Our translation is based on the gloss of Rav Kapach, who cites a similar interpretation mentioned by the Razeh.

. From the Rambam’s words, it appears that the men must be tied together. Otherwise, we suspect that one of them left and was replaced by another. In his commentary on the source for this law (Yevamot 122a), Rashi does not share this conception and maintains that the number of men itself is sufficient to serve as identification.

The Noda B’Yhudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambam requires that a) a specific number of men were mentioned, b) that their starting point and destination were mentioned, and c) that they were chained together.
The Noda B’Yhudah questions these requirements, because the standard text of Yevamot122a (the Rambam’s source) mentions two stories: one of men traveling in chains and one of sixty men traveling to Betar. The Rambam appears to have fused the two stories together, adopting the requirements mentioned by both and thus being more stringent than his source.
The Noda B’Yhudah reconciles this difficulty by referring to the statement of these incidents in Rabbenu Yitzchak Alfasi’s Halachot, which follows a different version of the text of Yevamot. Rabbenu Yitzchak Alfasi mentions ‘‘two men traveling in chains to Antioch.’’Since the Rambam was a student of one of the disciples of Rabbenu Yitzchak Alfasi, it is likely that the Rambam also had the same version of this passage.

Here too, the Rambam is referring to an instance in which the gentile did not know the identity of the people who died. (See the notes on the previous halachah.)

This applies even if the person is missing, and there are no traces of him left.

According to the Rambam and the Shulchan Aruch; alternatively, a person’s name and his father’s name.

Our wording is based on the gloss of the Rama (Even HaEzer 17:19), who states that thislaw applies even if the report is given by a gentile in the course of conversation.

In this instance as well, the name of the deceased is not mentioned.

The Maggid Mishneh states that the note must also be signed, and we must see that the signature was written by a Jew. The signature need not, however, be verified. (See ShulchanAruch, Even HaEzer 17:11 and commentaries.)

Regardless of the language in which the note was written, if it was written by a Jew, it is acceptable. If, however, it was written by a gentile, it is not acceptable even if it is written in Hebrew. For a gentile’s statements are acceptable only when made in the course of conversation (Maggid Mishneh).
In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Caro asks why a statement written by a gentile in the course of conversation is not effective. And in his Shulchan Aruch (loc.cit.), he rules that it is.

This is a leniency accepted in order to allow a woman to remarry. Generally, testimony must be given verbally and not in writing. (See Hilchot Edut 3:4.)

See Chapter 2, Halachah 16.

See Hilchot Edut 9:11, which explains that such testimony is ordinarily not accepted by aRabbinic court. An exception is made in this instance in order to allow a woman to remarry.

Which includes questions defining the exact time and place of the event. (See Hilchot Edut 1:4.)

Moreover, even if slight contradictions arise regarding minor points of the testimony oftwo witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).
In one of his responsa (quoted by the Rama, op. cit.), the Rambam writes: ‘‘Whoever is stringent and interrogates witnesses exactingly is not conducting himself properly, and his approach does not find favor in the eyes of our Sages.’’ The Rama, however, continues that if testimony appears contrived to the court, they must thoroughly investigate the matter.

I.e., these are leniencies that our Sages instituted. The acceptance of the testimony of one witness, by contrast, is a leniency implied by Scriptural Law.

I.e., if the man presumed dead returns, it will be obvious that the witness lied.

See similar statements in Hilchot Kiddush HaChodesh 3:14 and Hilchot Yibbum VaCha-litzah 4:31.
The Ra’avad and others note that our Sages (Yevamot 93b, 115a) mention two rationaleswhy a woman should be permitted to remarry, the one cited by the Rambam and also because of the severe consequences that she will bring upon herself if her husband is found alive (see Chapter 10, Halachah 7), a woman will investigate the matter thoroughly and will not remarry unless she is certain that he has actually died. The Talmud appears to imply that these rationales are contradictory and cites cases in which one would apply, but not the other.
The Noda B’Yhudah (loc. cit.) explains that the Rambam sees the two rationales as complementary. Ordinarily, when a matter can easily be verified — e.g., a question of whether or not chalitzah was performed — the statement of one witness is acceptable without question. In this instance, however, it is not always easy to verify whether in fact the man died, and therefore the rationale that the woman must investigate the matter is necessary. For this reason, in all the instances where the Talmud implies that one rationale would conflict with another, the Rambam reaches a conclusion that takes both rationales into consideration.

Sefer 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 acustom 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.

Implied is an exclusion. One should not perform this rite with the widow of one’s maternal brother (Yevamot 17b; Halachah 7 below).

See Hilchot Ishut 22:10-14.

According to the Rambam’s conception, the woman cannot be compelled to marry herbrother-in-law against her will. See Chapter 2, Halachah 10 and notes.

Sefer HaMitzvot (positive commandment 217) and Sefer HaChinuch (mitzvah 599)include this mitzvah as one of the 613 mitzvot of the Torah.

The 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 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 to the Mishnah, the Rambam explains that the mishnah follows the opinion of Abba Shaul, who maintains that the prohibition against marrying one’s brother’swife 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 challenge, one should perform the mitzvah of chalitzah.
In that commentary, and in a subsequent responsum, the Rambam explains that thehalachah 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 authoritieswho 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 theRama states that chalitzah is preferable, and that a couple should not be allowed toperform 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 to 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.]

The Hebrew word ben, translated as ‘‘son,’’ can also mean ‘‘child’’ or ‘‘descendant.’’Hence, the ruling mentioned by the Rambam.

If, however, a man fathered a child [or children], and he [they all] died childless in the father’s lifetime, the man’s wife is obligated to perform the rite of yibbum.

Regardless of who the father is.

See Hilchot Gerushin 10:19.

The Rama (Even HaEzer 156:4) states that these laws apply as long as we know that the pregnancy lasted into the ninth month.

The Rama (ibid.) rules that even if a fetus is stillborn, these laws still apply.

For according to Scriptural Law, there is no obligation for yibbum, and the prohibition against relations with her husband’s brother remains in force.

In such an instance, the brother may not perform the rites of yibbum or chalitzah until he comes of age, as is explained below.

The 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.

If, 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.

Needless 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.

I.e., the maidservant was freed, or the gentile woman was converted, before the baby was born.

See Hilchot Aveilut 2:1.

See Hilchot Edut 13:1.

See Hilchot Nachalot 1:6.

Yevamot 17b derives this concept from Genesis 42:13: ‘‘We are twelve brothers, the son of one father.’’

And therefore, one is not obligated to perform the rite of yibbum if his brother dies childless.

This 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.

As reflected in Halachah 12, there is a prohibition involved.

Our 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 per-forms 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).

I.e., if he is capable of meeting the responsibilities a husband has — providing for his wife’s livelihood, her clothing and her conjugal rights.

A person who transgresses a positive commandment is not liable to receive the forty lashes given when a negative Scriptural commandment 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.

The Ramban (Nachmanides, Hasagot L’Sefer HaMitzvot, Hosafot Negative Command-ment 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.

I.e., relatives with whom relations are permitted by Scriptural Law, but forbidden by Rabbinic decree.

This refers to seven women who are included in the category of arayot and with whom intimate relations are forbidden, as mentioned in Leviticus, Chapter 18, and Hilchot IssureiBi’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.

I.e., even a brother who was not born during the lifetime of the widow’s husband.

I.e., before she performs either yibbum or chalitzah.

He is, however, permitted to marry the woman’s sister, just as he is allowed to marry his wife’s sister after her death.

Although the woman herself is forbidden, as stated in the previous halachah, her relatives are permitted.

See Chapter 7, Halachah 8.

I.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.

Chapter 11, Halachah 3.

I.e., none of the other brothers should marry her instead. See Chapter 5, Halachot 18-19.

Two pubic hairs, as stated in Hilchot Ishut 2:10.

Deuteronomy 25:7 states: ‘‘If the man does not desire....’’

Rather, these intimate relations are considered to be equivalent to a ma’amar, the status of which is discussed in Chapter 2, Halachah 1.

See Chapter 5, Halachah 21, where this situation is described in detail.

Yevamot 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 awoman, 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, ourSages did not impose any restrictions.

Rav 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.

See Chapter 6, Halachah 6.

See 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.

For performing chalitzah will not prevent the determination of a child’s father.

The 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 to the Mishnah, Sanhedrin 2:1 and Hilchot Melachim 2:3).

The Rama (Even HaEzer 164:1) differs and maintains that such a woman requires chali-tzah from her deceased husband’s other brothers after the three months have passed. Seealso Beit Shmuel 164:4.

The Rama (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.

See 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.

And the yibbum or the chalitzah performed by the woman is of no consequence whatso-ever.

Lest she give birth, in which case she would be forbidden to the yavam.

The Rama (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.

The 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.)

The 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 Rama (Even HaEzer 164:6).

She does not require a get, because everyone knows that the consecration of such a woman is not binding.

For 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.

For 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.

A ma’amar can also be brought about 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 theman designate the woman as his wife before entering into marital relations with her.

The word ma’amar means ‘‘statement.’’

See Chapter 5, Halachot 2-3.

See Hilchot Ishut 4:1.

If 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.

See Hilchot Ishut 10:3 for the text of these blessings. The Rama (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.

The text of the ketubah to be composed by the yavam appears in Chapter 4, Halachah 32.

The fact that he disobeyed our Sages’ wishes does not cause his deed to lose its effective-ness.

The punishment given for disobeying a Rabbinic ordinance. See Hilchot Ishut 3:21.

Note 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.

Our translation is based on Rashi’s gloss, Yevamot 53b.

Although 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.

Our translation is based on Hilchot Issurei Bi’ah 1:10.

Note the Or Sameach, who questions this ruling based on the Jerusalem Talmud (Yeva-mot 6:1, quoted by the Rambam in Chapter 6, Halachah 3), which states that when mentally and/or emotionally challenged person performs yibbum, his act is binding. The Or Sameach explains that a mentally and/or emotionally challenged person may have theintent to engage in intimate relations. In this instance, however, the person has lost control of his faculties to the extent that he has no intent whatsoever.

For masturbation is not considered to be sexual relations.

For sodomy is considered to be a forbidden form of relations.

Since 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).

And remain married to her.

Since 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). Nevertheless, since she claims that they did not, and there is plausibility to her claim, he is also required to perform chalitzah.

After 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.

He has nothing to lose. 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.

According 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 to 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.)

See Halachah 12.

Although 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.

For until this mitzvah is performed, the yevamah may not remarry.

. I.e., the yevamah should not be subjected to an unnecessary delay, if possible.

When 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 theRambam often uses the word medinah to mean metropolis. He questions whether that is theRambam’s intent here.)

Here also, the intent is not to subject the yevamah to an unnecessary delay.

I.e., there is no halachic reason preventing her from doing so.

See 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 Chapter1, 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 torefuse to engage in yibbum, and she is not judged to have ‘‘rebelled’’ for this reason.

The Shulchan Aruch (Even HaEzer 77:2) differs with the Rambam and maintains that 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 Rama (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.

This applies even if one of the other women would be willing to marry the yavam; the choice is his and not hers.

The Maggid Mishneh explains that the woman must either consent to yibbum or be considered to have ‘‘rebelled.’’

The 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 ofage. This perspective is followed by the Shulchan Aruch (Even HaEzer 161:4).

If, 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.

Although, 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 Hala-chah 16 (Rav David Arameah).

Generally, 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).

See Chapter 1, Halachah 5.

I.e., her first husband or his estate would have had to pay her the money due her by virtue of her marriage contract.

He 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.

A man is entitled to divorce his wife if he discovers that before her marriage she posses-sed physical blemishes that mar her appeal 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, this law does not apply in this instance, because the connection between the yavam and theyevamah begins directly after her first husband’s death.

I.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.

I.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.

Since the vow was taken specifically to free her from the obligation of yibbum, the yavam is not obligated to respect it.

If he agrees and performs chalitzah willingly, he is obligated to pay her the money dueby virtue of her marriage contract.

In 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.

Moreover, 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.

As stated in Hilchot Ishut 18:1-2, a widow is entitled to live in her deceased husband’shome and derive her livelihood from his estate until she remarries.

The Kiryat Sefer explains that just as a man can divorce his wife against her will, sotoo, 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.

I.e., she is willing to forego the obligation of her husband’s estate to her.

For 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.

Hence, the woman is compelled to perform chalitzah.
If neither the yevamah nor the yavam desires to perform chalitzah, the court is under noobligation 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.)

The 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. TheRama (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.

As 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.

The 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 con-tract for 100 zuz, as explained in Hilchot Ishut 22:14.

Both Sefer HaMitzvot (negative commandment 357) and Sefer HaChinuch (mitzvah 596) include this as one of the Torah’s 613 commandments.

This applies even if she married without knowing of the existence of the yavam(Shulchan Aruch, Even HaEzer 159:2).

If, however, the couple do not engage in relations, they are not punished with lashes.

The children are not, however, considered illegitimate. See Hilchot Issurei Bi’ah 15:1-2.

I.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 intimate relations with her second husband (Kessef Mishneh; Ma’aseh Rokeach; see Hilchot Issurei Bi’ah 19:3).

The Shulchan Aruch (Even HaEzer 159:1) states that this law applies even when theman 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 hersecond husband.

I.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).

The rationale is that since the prohibition is merely a disciplinary measure, if the couple marry again they may remain married (Maggid Mishneh).
The Rama (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.

The Rama (Even HaEzer 159:3) states that she does, however, become forbidden to theman with whom she engaged in relations. Even if her yavam performs chalitzah, the two may not marry.

I.e., we do not force the couple to divorce, as in the previous halachah.

In 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.

The Rama (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.

I.e., the leniency is granted to the priest, because it is necessary and not to other men.